Short Notes 2002

 
1

KILLICK, John Reginald - CCA, 4.1.2002 - 127 A Crim R 273
O'Keefe J, Smart AJ
R v Killick [2002] NSWCCA 1
Sentence appeal.
Two indictments containing multiple charges: robbery; discharge firearm; escape; assault pilot; detain for advantage; steal MV.
The sentencing judge intended to impose head sentences totalling 28 years and NPPs totalling 15 years, both commencing on 9 May 2000. However, the sentences for each of the offences in Indictment 2 commence on a different and later date from the NPP in respect of such offence.
Prior sentences - sentencing for serious multiple offences - correct commencement dates for subsequent sentences - sentence must start at expiration of NPP of prior sentences - allowance for early guilty plea - law reform - need for amendment of sentencing legislation to ensure total of head sentences not reduced, by reason of accumulation provisions to an unacceptable level.
Appeal allowed: errors corrected, sentences restructured.
2

KHALOUF, Ali - NSW SC, O'Keefe J, 29.1.2002
Citation: R v Khalouf [2002] NSWSC 19
Remarks on Sentence.
Murder.
The victim died of multiple stab wounds.
High category of blameworthiness - not worst case category - infatuation - break-up of illicit liaison by victim - anger, resentment, vengeance and deprivation as motivating factors - absence of remorse and contrition - general deterrence - special circumstances - age of prisoner - progressive medical condition of prisoner.
Sentenced to 20y with NPP of 13*y.
3

KINCHELA, Shane Anthony - NSW SC, Sperling J, 23.1.2002
Citation: R v Kinchela [2002] NSWSC 8
Judgment on application for bail for purpose of obtaining treatment for alcohol dependency.
Applicant on remand, facing committal proceedings following threatening 3 youths with a firearm as well as a large number of people at a hotel. Whilst at the hotel he struck one patron on the head with the butt of the firearm, causing a fracture & other injury. He also threatened police officers with the weapon. He loaded the weapon & subsequently threatened 2 further police officers. When arrested, he struck a police officer with a bottle. He was under the influence of alcohol at the time.
Prior offences - alcohol problem - sought to take part in drug & alcohol programme whilst on remand but received no response from prison authorities.
Desire to undertake treatment for alcohol abuse - when not affected by alcohol, behaviour unexceptional - excellent work record.
Conditional bail granted.
4

LU LU - NSW SC, 29.1.2002
Citation: R v Lu Lu [2002] NSWSC 14
Judgment on application for bail.
Knowingly concerned in the importation of commercial quantity amphetamine; knowingly concerned in importation of commercial quantity heroin.
Applicant & co-accused arrested following a controlled delivery of a consignment of pineapples to premises in Sydney. The consignment contained amphetamine & heroin capsules which had been shipped from China.
s.8A of the Bail Act 1978 applied & the applicant was granted conditional bail, however, it was revoked a little over a month later on the Crown's application for a review of that order made pursuant to s.45 of the Act. In the present application, applicant was confronted by s.22A(1). Since the revocation of bail, applicant has been committed for trial. Applicant's case for special facts or special circumstances was that relevant information was now available which was not known to applicant or reasonably ascertainable by him prior to the committal hearing.
Application for bail not entertained following an earlier order of the SC revoking bail - no question of principle.
5

STEVENS, Russell John - CCA, 16.11.2001
Spigelman CJ, Simpson J, Smart AJ
Citation: R v Stevens [2001] NSWCCA 330
Conviction and sentence appeal.
Maliciously inflict GBH; supply prohibited drug (25.53 grams methylamphetamine); + a charge of possess cannabis leaf taken into account.
Total of 5y 9m with NPP of 3y 3m.
From the wrong side of the road, appellant overtook a car driven by victim's wife. Both vehicles stopped at traffic lights whereupon appellant & at least one other male approached victim's car then pulled him from the vehicle. Victim attempted to defend himself with a clublock, which was taken from him. Appellant assaulted the victim with the clublock. Victim was repeatedly kicked & punched.
Aged 47 at time of offences - troubled upbringing - poor health - lengthy criminal record - priors include offences for violence, property & driving - previous imprisonment in 3 Australian states.
Whether conviction unreasonable having regard to the evidence - whether witnesses 'coached'- whether undue weight given to evidence of witnesses.
Appeal dismissed.
6

RAE, Stephen John - CCA, 12.12.2001
Giles JA, Sully & Levine JJ
Citation: R v Rae [2001] NSWCCA 545
Sentence appeal.
GBH with intent to murder; + additional offence of AOABH taken into account.
19y 8m with NPP of 14y 9m.
Applicant poured petrol over victim (a former girlfriend) & set her alight. Victim sustained full thickness burns to 93% of her body as well as severe internal inhalation injuries, leaving her with enormous level of disfigurement & disability, her mobility severely affected by substantial scar tissue. At the time of the incident, medical opinion was that she was not expected to live. Because hair follicles, sweat glands & sebaceous glands have been destroyed, she has problems with temperature control. Requires continuing physiotherapy & psychotherapy. Requires care for rest of life.
A neighbour who tried to stop the appellant from setting the victim alight received partial thickness burns to 10-15% of his body.
Guilty plea - 'worst case'category - whether sentencing error - R v Thomson & Houlton (2000) 49 NSWLR 383 - contrition - subjective features - weight given.
Appeal dismissed.
7

BIKIC, Ned - CCA, 13.12.2001
Giles JA, Sully & Levine JJ
Citation: R v Bikic [2001] NSWCCA 537
Conviction appeal.
1 x murder; 1 x manslaughter. (See R v Bikic [2001] NSWSC 571 for details.)
Appellant sought to place before the CCA new evidence from participants in the above offences to the effect that appellant was not present at the time of the offences or that they did not see him when the shootings occurred. Evidence was received from one witness, whereupon the Crown commenced cross examination of that witness. Objection was taken on the grounds of self-incrimination.
Self-incrimination - objection taken - already convicted of offence - possible appeal - whether reasonable grounds for objection - application of s.128 Evidence Act 1995.
Held: Objection to answering questions on ground of self-incrimination overruled, subject to objection to particular questions.
8

CARROLL, Douglas John Frederick - CCA, 10.12.2001
Greg James & Whealy JJ
Citation: R v Carroll [2001] NSWCCA 511
Sentence appeal.
1 x BE&S; 1 x aggravated BE&S; + 6 offences on a Form 1 (take & use conveyance; BE&S; possess housebreaking implements; possess explosive device; possess prohibited drug).
5y 3m with NPP of 2y 3m.
No details of offences stated.
Aged 34y 9m at time of sentence - discount for guilty plea - special circumstances - positive steps towards rehabilitation - disproportion between head sentence & NPP.
Appeal allowed: resentenced to 4y 3m with NPP of 2y 3m.
9

HOFER, Rudolph - CCA, 14.12.2001
Wood CJ at CL, Sperling J
Citation: R v Hofer [2001] NSWCCA 544
Sentence appeal.
Supply methylamphetamine on an ongoing basis; + a Form 1 matter (possess cannabis - 62 grams).
5y with NPP of 3y.
The supply offences arose out of the supply of methylamphetamine to an undercover police officer on 5 occasions over a period of 10 days. On 3 occasions the quantity supplied was half a gram for which applicant received $50 for each deal. The other 2 deals each involved 7 grams for which applicant received $300 on each occasion. Applicant was the proprietor of a service station in Cessnock. The sales of drugs were made at the service station.
Prior conviction for drug offence - earlier offence inappropriately taken into account - double jeopardy - use of Judicial Commission statistics for comparison with like offences - sentencing discretion - whether sentence excessive.
Appeal allowed: resentenced to 4y with NPP of 2y 4m.
10

BELL, Philip Harold - CCA, 1 February 2002
Handley JA, O'sKeefe J, Smart AJ
Citation: R v Bell [2002] NSWCCA 2
Application for leave to withdraw Notice of Abandonment of appeal against conviction;
application for extension of time within which to appeal and leave to appeal against conviction;
application for leave to appeal against certain sentences.
Multiple counts including homosexual intercourse with male between ages of 10 & 18 years, assault with act of indecency, indecently assault male, assault with act of indecency. These offences involved an almost continuous course of serious sexual conduct. Arrested in South Africa on 17.1.97 & extradited to NSW on 29.5.97 to face 175 charges. Applicant convicted and sentenced for 44 offences with 31 similar offences taken into account.
Sentenced to overall total of 14y with NPP of 10y & 3d short of 6m.
Alleged fresh evidence but relevant facts already known - admission of tendency and/or coincidence evidence - separate trials - credibility of witnesses - alleged discrepancies & problems dating incidents which happened many years before - adverse pre-trial publicity & publicity during trial - directions to jury to overcome publicity - whether verdicts reasonable & supported by evidence - whether miscarriage of justice.
Leave to withdraw Notice of Abandonment of appeal against convictions refused; leave to appeal against convictions out of time refused.
11

ODDIE, Dougal John - CCA, 12.12.2001
Greg James & Bell JJ
Citation: R v Oddie [2001] NSWCCA 524
Sentence appeal.
1 x dangerous drive occasioning death; 2 x dangerous drive occasioning GBH.
2y with NPP of 1y; disqualified from holding a licence.
Applicant pleaded not guilty & relied upon an explanation that the reason his vehicle had crossed over a median strip & was being driven on the wrong side of the road was because the vehicle was affected by a mechanical defect. The jury rejected this explanation. Evidence from a witness driving behind applicant that applicant had been driving within speed limit.
Application of Jurisic - culpable conduct not identified in trial's judge's reasons - whether error.
Appeal allowed: resentenced to 16m with NPP of 8m.
12

HOANG, Van Ngung - CCA, 30.11.2001
Hidden J, Newman AJ
Citation: R v Hoang [2001] NSWCCA 485
Conviction appeal.
1 x supply heroin.
5y with NPP of 2*y.
Applicant was involved in a car accident, his car having run into a ditch at the side of the road. Police attended & applicant was found to be in possession of the heroin (54.8 grams). He declined to be interviewed about the heroin. At trial, sentencing judge noted that there was no evidence that the applicant was a drug user. In his remarks on sentence, he stated that '...on the finding of the jury, this is a case where the offender is a dealer, that he is using the sale of drugs for greed'.
Whether applicant properly characterised as a dealer.
Appeal dismissed.
13

EL HASSAN, Radwin - CCA, 6.12.2001 - 126 A Crim 477
Stein JA, Hidden & Howie JJ
Citation: R v El Hassan [2001] NSWCCA 543
Application for leave to appeal under s.5F Criminal Appeal Act against interlocutory judgment.
Attempt obtain possession of commercial quantity cocaine.
Issue raised concerned the elements of the offence, e.g. the matter for determination is whether the Crown is required to prove that the applicant intended to take possession of a particular quantity of cocaine or whether it is sufficient that the applicant be proved to have intended to take possession, regardless of the amount involved.
Leave to appeal granted, appeal dismissed.
14

HENRY, Mark Simon - CCA, 12.12.2001
Greg James & Bell JJ
Citation: R v Henry [2001] NSWCCA 521
Sentence appeal.
1 x robbery in circumstances of aggravation.
4y with NPP of 2y.
The circumstance of aggravation was that during the robbery of a shopkeeper, applicant used an offensive weapon (syringe). During the robbery, the shopkeeper's wife entered with a club lock & struck the applicant on the hand, whereupon a struggle ensued, the applicant subsequently being pinned to the floor & held there until police arrived. The shopkeeper sustained bruises & grazes to the top of his head, a sore neck & minor cuts to his head.
Aged 40 - New Zealand national - minimal prior criminal record - drug problem - attempts whilst in custody to reduce drug dependence - remorse.
Early guilty plea - application of principles in Henry - whether error in exercise of discretion.
Appeal dismissed.
15

GS - CCA, 1.2.2002
Powell JA, Sully & Bell JJ
Citation: R v GS [2002] NSWCCA 4
Conviction appeal.
Appellant stood trial for 7 sexual offences committed upon his daughter (3 x assault & commit act of indecency; 4 x carnal knowledge).
Total of 9*y with NPP of 6y.
This was the appellant's 2nd trial, the jury being unable to agree in the 1st trial on the same 7 counts. Some of the offences were committed when appellant's daughter was under the age of 16, starting when she was 5 years old. Appellant was convicted on 6 counts & acquitted on the 2nd count in the indictment (assault & commit act of indecency).
Whether 6 verdicts of guilty unreasonable having regard to one verdict of not guilty - prosecution for sexual offences - when sanction required - delegation of power to sanction - at what time may delegation be effected - whether delegation of power to sanction effective - inconsistent verdicts - whether miscarriage of justice.
Appeal dismissed.
16

COOPER, Paul Antonio - CCA, 4.12.2001
Stein JA, Hidden & Howie JJ
Citation: R v Cooper [2001] NSWCCA 542
Sentence appeal.
Aggravated BE&S - 3y with NPP of 2y; larceny - FT 4*m (concurrent).
Applicant appealed only against the sentence for the aggravated BE&S.
Applicant entered the home of the manager of a motel & his wife in the early hours of the morning. The manager's wife heard somebody in the house & woke her husband who found the applicant in the kitchen holding a mobile telephone & a butter knife he said he found in the street outside the motel. The applicant allowed the manager to take the mobile phone & the knife away from him & remained compliantly in the kitchen until police arrived. Earlier, he had stolen tools, fishing equipment & a rifle from a property where he had been staying with his girlfriend.
Full admissions - no threats made to occupants of house - no items stolen from property he was charged for illegally entering - maintained he did not know the house was occupied at the time - would never have pleaded guilty to the charge had he known the implications - whether sentence excessive.
Appeal allowed: NPP reduced to 18m.
17

HUNTER, Angus Ian - CCA, 10.12.2001
Greg James & Whealy JJ
Citation: R v Hunter [2001] NSWCCA 530
Sentence appeal.
Armed robbery; + Form 1 offence (assault).
Total of 7y with NPP of 3*y.
A woman, who had her two children with her, was about to withdraw money from an ATM when the applicant grabbed hold of the woman's 9 year old daughter, placed an arm around her neck, held a knife to her throat & said 'It wouldn't be a pretty sight if I cut your daughter's throat'The woman managed to put her right hand between the knife & the child's throat to prevent the child from being cut. The ATM then produced $100, the applicant snatched it & ran off. He was arrested shortly thereafter on a bus & found with the proceeds of the robbery less the cost of a bus ticket.
Aged 45 - guilty plea - schizophrenia - general deterrence - utilitarian value of guilty plea - need for ongoing rehabilitation - improvement in relation to mental illness due to medication - has remained drug free - difficult circumstances of custody - on protection - whether sufficient consideration given to special circumstances.
Appeal dismissed.
18

BARNIER, Geoffrey William - CCA, 30.10.2001
Ipp AJA, Hidden & Barr JJ
Citation: R v Barnier [2001] NSWCCA 459
Conviction appeal.
1 x supply methylamphetamine (deemed supply).
A package containing the drug was found in the appellant's home. Appellant claimed the package belonged to a man who, he said, had asked the appellant if he could leave the package in the appellant's house. Appellant told police he was aware the package contained a drug of some kind but denied it was his, saying he had nothing to do with drugs. He said he thought he had been set up. There were no identifiable fingerprints on the package. No equipment such as scales or plastic bags were found in the house. The issue of possession was left to the jury.
Whether verdict unreasonable - whether evidence sufficient to establish possession.
Appeal dismissed.
19

CONWAY, John Terence - HC, 7.2.2002 - 209 CLR 203;76 ALJR 358
Citation: Conway v The Queen [2002] HCA 2
On appeal from the Federal Court of Australia.
The appellant was convicted of the murder of his wife. He paid 2 men to inject his wife with a lethal dose of heroin.
The Federal Court found the trial judge had misdirected the jury as to what constituted corroborating evidence of accomplices. It then dismissed the appeal on the basis of the proviso. s.28(1)(f) Federal Court Act 1976 (Cth) gives the Court power to grant a new trial 'on any ground upon which it is appropriate to grant a new trial'.
Corroboration - directions - warnings - misdirection - whether miscarriage of justice.
Appeal dismissed - no error in dismissal of appeal by Federal Court.
20

BOWMAN, Bradley Russel - CCA, 28.11.2001
BOWMAN, Paul Nathan
Beazley JA, Hulme & Hidden JJ
Citation: R v Bowman [2001] NSWCCA 449
Crown appeal under s.5F Criminal Appeal Act.
Supply large commercial quantity pseudoephedrine.
Respondents were brothers awaiting trial in the DC upon the above charge brought jointly against them. On 10.9.2001, a judge of the DC ordered that they be tried separately. Crown case was that police searched a car owned & driven by Paul Bowman with Bradley Bowman a passenger. In the boot & in the interior of the car, police found white powder which proved to be pseudoephedrine, as well as items of laboratory equipment. Fingerprints of each respondent were on some of these articles.
Order for separate trials - evidence of statements by one accused prejudicial to another accused - whether evidence admissible.
Appeal allowed: order for separate trials set aside.
21

GAY, Brian Edward - CCA, 5.2.2002
Mason P, Hulme & Hidden JJ
Citation: R v Gay [2002] NSWCCA 6
Sentence appeal.
10 x defraud Commonwealth.
3y with NPP of 12m on each charge (concurrent).
5 charges related to applicant's failure to declare part of his income in his personal income tax returns for the years ended 30.6.1989 to 1993. The other 5 charges related to his being knowingly concerned in the failure by a company to declare part of its income in its income tax returns for the same financial years. There was a 3 year delay between a police interview which resulted in full admissions & laying of charges.
Applicant sought leave to appeal against those sentences & the application was heard on 8.11.2001 when the Court determined the appeal should be allowed & gave an undertaking to give its reasons later.
Appropriateness of custodial sentence - relevance of administrative penalties imposed by Tax Commissioner - serious delay in laying charges a factor in mitigating otherwise appropriate sentence.
Appeal allowed: the 3y sentence confirmed but the NPP was varied to enable the applicant's release on the day of the hearing of the appeal (8.11.2001), effectively halving the NPP. The Court made criticism of the Australian Taxation Office and/or the Office of the Commonwealth DPP for the delay in bringing charges.
22

TAN, Dawin - CCA, 26.11.2001
Hidden J, Newman AJ
Citation: R v Tan [2001] NSWCCA 490
Sentence appeal.
1 x aggravated robbery; 1 x demand money with menaces.
Total of 8y with NPP of 5y.
The victim was taken by the applicant & his co-offenders. They placed masking tape around her eyes, ankles & wrists & held her in a van. All offenders wore stockings over their faces, one co-offender was armed with a knife. Victim was held in the van a number of hours, whilst offenders drove around. They took money from her handbag, then took 2 key cards & withdrew money out of victim's bank accounts. Offenders continued to demand money from the victim & the victim told them she had $10,000 in a Hong Kong account which required her giving 24 hours' notice to make any withdrawal. Offenders released victim to make the necessary arrangements, threatening to kill her son if she went to the police. A short time after being released, victim contacted police. The following day, offenders continued withdrawing money out of victim's bank accounts. Victim was contacted by phone a number of times & further demands were made for the $10,000. Police monitored these calls. Arrangements were made for the victim to put the money in a plastic bag & place it in a bin at a designated spot. The applicant was arrested when he attempted to retrieve the plastic bag from the bin.
Aged 27 - guilty plea at earliest opportunity - full co-operation with police - gambling problem.
Whether sentences excessive.
Appeal dismissed.
23

AL-ZAABI, Khalid - CCA, 20.12.2001
Beazley JA, Hulme & Barr JJ
Citation: R v Al-Zaabi [2001] NSWCCA 538
Crown appeal.
1. Dishonestly obtain $30,000 by deception; 2. Purchase a MV with money known to be proceeds of a serious offence; 3. Dishonestly obtain financial advantage by deception ($10,000); 4. Dishonestly obtain money by deception ($30,000); 5. Engage in transaction knowing money used was the proceeds of a serious offence; 6. Engage in transaction with money known to be proceeds of serious offence.
Sentenced on 1st, 3rd & 4th counts to concurrent sentences of 2y with NPP of 16w & 1d with a condition of parole that he be admitted to the residential gambling rehabilitation course conducted by Salvation Army at the William Booth Institute & that he complete the programme. On each of the remaining counts, received 3m FT (concurrent)
Whether sentence manifestly inadequate.
Delay in serving notice of appeal - respondent avoided service - whether Court should decline to interfere with an inadequate sentence.
Appeal allowed: sentences imposed on 1st, 3rd & 4th counts quashed & in lieu on each count sentenced to 2*y with a NPP of 1y 3m (concurrent) with a condition of parole that he complete the programme at the William Booth Institute.
24

GARDINER, Roger William - NSW SC, Whealy J, 6.12.2001
Citation: R v Gardiner [2001] NSWSC 1147
Remarks on Sentence.
Manslaughter.
During an argument in which the deceased became aggressive & abusive, the prisoner stabbed the deceased. When the prisoner realised what he had done, he tried to save the deceased.
Guilty plea - unpremeditated - provocation - momentary loss of self-control - reasonably lengthy criminal record - breach of recognizance for violent offence - personality disorder but no danger to community - contrition.
Sentenced to 7y 11m with NPP of 5y.
25

RUDENKO, Michael Shane - CCA, 12.12.2001
Greg James & Bell JJ
Citation: R v Rudenko [2001] NSWCCA 519
Sentence appeal.
Robbery; + Form 1 (knowingly take part in cultivation of prohibited plant; possess prohibited drug - cannabis).
3y 5m, with NPP of 2*y.
Applicant showed a Federal Police badge to a TAB employee who had a briefcase attached to her arm. He pushed her then used a pair of pliers to cut through the chain attached to the briefcase. An alarm inside the briefcase went off & a smoke dye bomb inside the briefcase exploded. Amount of money stolen was $7,926.
Application of Henry - application of Judicial Commission statistics - whether sentence excessive.
Appeal dismissed.
26

COSIER, Ian - CCA, 10.12.2001
Greg James & Whealy JJ
Citation: R v Cosier [2001] NSWCCA 513
Sentence appeal.
Multiple armed robbery; harbour escapee; + Form 1 offences (armed robs; larceny of MVs).
Total 10y 5m with NPP of 7y 5m.
Appellant conspired to abduct the manager of Katoomba Skyway from his home at gunpoint & demand he give appellant & co-offenders access to the business safe. He also robbed a restaurant & menaced staff with a shortened firearm, bound staff with tape & stole their valuables. Appellant was involved in the armed robbery of a golf course where he threatened staff with a .22 calibre rifle.
Aged 28 at time of offence - early guilty plea - substantial assistance - appalling upbringing - potential for rehabilitation - priors include AOABH, breach AVO - previous imprisonment.
Principles in Henry - discount for plea - disclosure of other crimes - whether sentences excessive.
Appeal dismissed.
27

JFR - CCA, 11.2.2002
Hidden J, Newman AJ
Citation: R v JFR [2002] NSWCCA 9
Sentence appeal.
6 x indecent assault.
Total sentence of 3y 3m with NPP of 19m.
Applicant pleaded guilty in the LC on 28.11.2000 & was sentenced in the DC on 23.4.2001. Offences involved applicant's 2 natural daughters. One daughter was born in 1955, the other in 1956. The offences occurred between 8.12.60 & 11.3.64 & involved a systematic course of deliberate criminal behaviour over an extended period.
Whether appropriate to sentence on standards at time of commission of offence - long delay between commission of offence & conviction - statutory trigger for resentencing - failure to give weight to contrition, prior good character, utilitarian value of guilty pleas, long delay & staleness of offences - failure to give adequate weight to effect of full-time custody on appellant who is now 62 - whether sentences excessive.
Appeal dismissed.
28

BUNEVSKI, Zivko - CCA, 6.2.2002
Wood CJ at CL, Sully & Dowd JJ
Citation: R v Bunevski [2002] NSWCCA 19
Conviction and sentence appeal.
No details of offence given.
Error in trial judge's failure to direct the jury on certain evidence adduced in cross examination of appellant based upon an excluded record of interview.
Inadmissibility of record of interview - admissible only for credibility.
Appeal allowed: new trial ordered.
29

ANDREWS, Tracey Marie - CCA, 1.2.2002
Ipp AJA, Grove & Dowd JJ
Citation: R v Andrews [2002] NSWCCA 18
Sentence appeal.
4 x accessory after the fact to robbery; 2 x robbery (principal in the second degree).
Total 4*y with NPP of 2y.
A man recently released from prison was residing with applicant, her de facto husband & her children. During this time, applicant had an affair with the man. She became influenced by the man & participated in the above offences with him.
Voluntary plea of guilty - insufficient weight given - assistance to authorities - consent of Crown to tender of information showing value of assistance greater than could have been appreciated at time of sentence - particular circumstances.
Appeal allowed: resentenced to 3*y with NPP of 1*y.
30

KOLLAS, Robbie Ashley - CCA, 11.2.2002
Kirby & Hidden JJ
Citation: R v Kollas [2002] NSWCCA 15
Sentence appeal.
1. Maliciously inflict GBH with intent to do GBH;
2. In the alternative, maliciously inflict GBH;
3. maliciously damage property.
The jury returned a verdict of not guilty on the 1st count & guilty on counts 2 & 3.
Total of 3y with NPP of 2y.
A vicious attack upon a young pizza delivery man outside a pizza shop by applicant & co-offenders, the applicant being armed with a club-lock & another co-offender with something described as looking like a tyre lever. The victim suffered horrendous injuries, including brain damage which may be permanent.
Inadequate sentence of co-offender - parity in such circumstances.
Appeal dismissed.
31

VELEVSKI - HC, 14.2.2002 - 76 ALJR 402
Citation: Velevski v The Queen [2002] HCA 4
Appellant was convicted of murder of wife & 3 children. Victims found in master bedroom of house with throats slashed. Appellant claimed wife took children into bedroom late morning & was not seen again until found dead by police late afternoon the following day. Appellant claimed he slept 17 hours in daughter's bedroom from afternoon until early morning of day bodies found. Upon waking he found bedroom door locked & could not locate wife & children. He did not contact police until afternoon. Disputed expert medical evidence as to whether position of bodies & bloodstains consistent with suicide or homicide of wife.
Whether trial judge should have directed jury that some areas of dispute between expert evidence were beyond their capacity to resolve & therefore it would be dangerous for them to accept a body of expert evidence adverse to appellant - whether some aspects of expert evidence went beyond area of specialised knowledge - whether Crown should have called additional expert witnesses - whether judge erred in allowing appellant's claim that he slept 17 hours to go to jury as possible lies reflecting consciousness of guilt.
Whether verdict unreasonable.
Appeal dismissed (Gaudron J dissenting).
32

TURK, Andrew Mark - CCA, 10.8.2001
Spigelman CJ, Grove J, Einfeld AJ
Citation: R v Turk [2001] NSWCCA 547
Conviction appeal.
Murder.
18y with NPP of 14y.
Evidence at trial that accused actively sought out the deceased following some prior incidents where the deceased assaulted the accused. For more details of offence, see R v Turk [2000] NSWSC 1071.
Whether direction on provocation required - where no evidence of loss of self-control - whether summing up incomplete because particular evidence not referred to.
Appeal dismissed.
33

LOH, Edwin - CCA, 6.2.2002 - 127 A Crim R 577
Wood CJ at CL, Sully & Dowd JJ
Citation: R v Loh [2002] NSWCCA 23
Crown appeal.
Count 1: Supply commercial quantity methylamphetamine (500.9 grams) - 6y with NPP of 4y;
Count 2: Supply MDMA (ecstasy - 120.9 grams) 3y FT (concurrent with Count 1);
Count 3: Supply MDMA (ecstasy - 14.2 grams) - 3y FT (concurrent with Count 1);
Count 4: Deemed supply of commercial quantity MDMA (ecstasy - 149.2 grams) - 4y FT (concurrent with Count 1).
A further charge of possess 27.7 grams cannabis leaf was taken into account.
At the time of the above offences & sentences, respondent was on parole for being knowingly concerned in the importation of cocaine & possess prohibited import for which he was sentenced to 12y with a NPP of 7y. He had been released to parole upon the expiry of that NPP.
Totality - double jeopardy.
Insufficient weight given to respondent's re-offending whilst on parole - whether sentences manifestly inadequate.
Appeal allowed, resentenced as follows: Count 1 - 7*y with NPP of 5y; Counts 2&3 - 4y FT (concurrent with Count 1); Count 4 - 6y with NPP of 4y (concurrent with Count 1).
34

ZAMAGIAS, Billy - CCA, 15.2.2002
Hodgson JA, Levine & Howie JJ
Citation: R v Zamagias [2002] NSWCCA 17
Crown appeal.
1 x malicious wounding with intent to cause GBH.
2y suspended sentence.
Crown alleged respondent used a piece of broken glass to inflict a severe gash to the neck of the victim during a fight at an hotel. Victim underwent emergency surgery. Victim left with a substantial scar & injury to saliva gland & loss of sensory perception around one ear.
Judgment and punishment - suspended sentence - when appropriate.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 3y with NPP of 2y 3m.
35

CAMERON - HC, 14.2.2002 - 209 CLR 339; 76 ALJR 382
Citation: Cameron v The Queen [2002] HCA 6 (14 February 2002)
Appellant was charged with possession of ecstasy. Subsequent analysis showed the drug was methylamphetamine (speed). At the request of appellant's legal representatives, the complaint was amended & appellant pleaded guilty. The sentencing judge allowed a reduction of 10% for the guilty plea. Appellant submitted that as he had pleaded guilty at the first opportunity, he should be credited with the benefit of an early plea under the WA's "fast track" guilty plea system which allows for a reduction of between 20% - 35%.
Sentence - drug offence - complaint wrongly particularised prohibited drug - guilty plea entered as soon as complaint amended - whether plea entered at first reasonable opportunity.
Held: The CCA erred in holding that the appellant could have pleaded guilty before the complaint was amended.
Appeal allowed: matter remitted to CCA for further hearing & determination.
36

SEWELL, Thomas Joseph - CCA, 1.2.2002
Ipp AJA, Grove & Dowd JJ
Citation: R v Sewell [2002] NSWCCA 7
Conviction and sentence appeal.
7 x use false instrument knowing it to be false (s.300(2)); + 10 similar charges taken into account on a Form 1.
Total of 4y with NPP of 1y 5m.
Appellant pleaded guilty to the above counts which involved him using the false instruments to induce Westpac to accept them as genuine & thereby credit to appellant's account a sum of money to the prejudice of his employer, Westbus Pty Ltd. See: R v Sewell [2001] NSWCCA 299. The pleas to the above counts were entered pursuant to an agreement between the Crown & the appellant as to the counts that were to be brought against him in respect of which he would plead guilty.
Withdrawal of guilty plea - pleas of guilty voluntary - appellant repudiated agreement - repudiation does not give rise to an entitlement to withdraw the pleas of guilty of which appellant was fully informed.
Whether sentence excessive - remorse - rehabilitation - age - medical condition.
Conviction appeal dismissed.
Sentence appeal dismissed.
37

CLARK, Peter Frederick - CCA, 11.2.2002
Hodgson JA, Levine & Howie JJ
Citation: R v Clark [2002] NSWCCA 16
Conviction appeal.
Act with intent to pervert the course of justice.
12m PD.
Appellant had an appeal matter before the Taree DC. The judge refused his application to call witnesses. Appellant then asked the judge if he could speak to him in chambers concerning a delicate issue. In chambers, appellant said that the police officer giving evidence for the Crown had told him that the judge was corrupt and that he accepted bribes. He also said that he had been told that the judge's wife laundered money for organised crime syndicates. The judge then disqualified himself from hearing the appeal on the basis that the appellant sought to either prejudice the judge against the appellant and/or the police officer.
Appellant was unrepresented - evidence of police witness not obtained - conflict of interest between the trial judge & disqualified judge - trial judge had 'nodded off'- trial judge failed to give directions concerning possible mental illness of appellant - wrongly disallowed questions concerning truth of allegations - errors in summing up regarding judge's statement that the truth or otherwise of what was said by appellant was irrelevant.
Whether truth of statement relevant to intent - whether new trial should be ordered.
Appeal allowed: verdict of acquittal entered.
38

FERNANDO, Stanley John - CCA, 22.2.2002
Spigelman CJ, Wood CJ at CL, Kirby J
Citation: R v Fernando [2002] NSWCCA 28
Crown appeal.
4 x armed robbery; 1 x assault with intent to rob whilst armed with offensive weapon; 1 x use offensive weapon to prevent lawful apprehension; + 2 offences taken into account (armed rob, assault).
Total of 6y with NPP of 3y.
The robbery offences involved respondent being armed with a syringe filled with red liquid. The use offensive weapon to prevent lawful apprehension involved respondent grabbing hold of a police officer's gun whilst in the holster, releasing the holster clasp & pulling the pistol part-way out of the holster, whereupon the police officer tried to force the pistol back into the holster by pushing down on respondent's hands. Police officer shouted for help. Respondent took hold of police officer by the throat with both hands. Unable to breathe, police officer kicked the respondent twice. Another police officer & a male civilian came to the police officer's assistance. Respondent was forced to the ground & handcuffed. The police officer suffered bruising to his throat & neck area & an abrasion to the back of his right hand.
Consideration of objective gravity of offences against subjective circumstances of offender - whether subjective considerations given too much weight - whether commission of offences whilst on parole considered - whether sentence manifestly inadequate.
Appeal allowed: resentenced to total of 7y with NPP of 4y.
39

HOADLEY, Robert - CCA, 15.2.2002
Kirby & Buddin JJ
Citation: R v Hoadley [2002] NSWCCA 39
Sentence appeal.
1 x robbery (of a mobile phone).
2y with NPP of 1*y.
Appellant attacked & robbed the victim in the street. The offence was observed by police who spoke to the appellant. After they found the mobile phone in appellant's possession, he was arrested & charged. Appellant did not give evidence at trial, however, his brother gave evidence, saying he had noticed a marked improvement in the appellant's attitude & indicated he was prepared to assist his brother. He said that he had a successful earth moving business & was prepared to offer the appellant accommodation & employment.
Extensive criminal record, mostly for offences of dishonesty - prior imprisonment - some association with drugs.
Failure to find special circumstances - whether too little weight given to brother's evidence & the opportunity it offered for rehabilitation of appellant.
Appeal dismissed.
40

McINTYRE, David John - CCA, 15.2.2002
Hodgson JA, Levine & Howie JJ
Citation: R v McIntyre [2002] NSWCCA 29
Conviction and sentence appeal.
Murder.
22y with NPP of 17y.
Appellant was a friend of the 14 year old male victim's mother. He used to take victim & his brothers on fishing & camping trips. The victim spent a lot of time at appellant's house. A few days before his body was found, victim & some other boys stole a battery from appellant's car. He was last seen by his friends returning to appellant's house later that night. Some days later, his body was found with stab wounds to the neck & heart. The body was naked from the waist down & the genitals had been removed. Evidence at trial that 2 weeks prior to death, the victim had told his mother that the appellant had asked for a sexual favour.
Relationship evidence - whether error in admitting evidence of appellant's alleged request for sexual favours as relationship evidence - no expert evidence to suggest mutilation resulted from rejected sexual advance - whether evidence unfairly prejudicial & should have been excluded under s.137 Evidence Act.
Appeal dismissed..
41

X - CCA, 26.2.2002 - 130 A Crim R 153
Y
Bell & Howie JJ, Smart AJ
Citation: R v X; R v Y [2002] NSWCCA 40
Crown appeal.
1 x conspiracy to import commercial quantity prohibited imports (cocaine); 1 x conspiracy to import commercial quantity prohibited imports (ecstasy).
X sentenced to 7*y with NPP of 5y on each count (concurrent).
Y sentenced to 5y with NPP of 3y on each count (concurrent).
The offences related to one importation. The conspiracy extended over a period of some 5 months & involved X, Y & some other people who were not named. Both offences were under s.233B Crimes Act 1901 (Cth), rendering offenders liable to life imprisonment. The pure amount of cocaine involved was 7.1648 kgs & that of ecstasy was 24.4880 kgs, the latter comprising both tablets & powder.
Both respondents have given assistance to the authorities - pleas of guilty.
Affront to community standards - insufficient punishment for criminality involved - whether sentence manifestly inadequate.
Appeal allowed in part:-
X - resentenced to 10y with NPP of 5y on each count (concurrent);
Y - resentenced to 7y with NPP of 3y on each count (concurrent).
42

LE, Chinh Vu Quoc - CCA, 11.2.2002
Hidden & Kirby JJ
Citation: R v Le [2002] NSWCCA 26
Sentence appeal.
Supply heroin on 3 or more occasions.
5y with NPP of 3y.
Following complaints from neighbours about the traffic of persons to & from some premises, police arrested a person associated with those premises & mounted a surveillance of the premises. When they eventually entered the premises, they found applicant there, surrounded by electric scales, a razor blade & the remnants of a block of heroin. Police interviewed others within the premises. They were addicts who used the premises as their source of supply in the month or so preceding appellant's arrest.
Whether deterrence must yield to rehabilitation to a degree.
Youth - special circumstances - whether sentence excessive.
Appeal allowed: resentenced to 4y with NPP of 2y.
43

HAMZY, Bassam - CCA, 21.12.2001 - 53 NSWLR 726; 127 A Crim R 70
Beazley JA, Hulme & Barr JJ
Citation: R v Hamzy [2001] NSWCCA 539
Conviction appeal &
Crown appeal.
2 x knowingly concerned in the importation of cocaine (772.6 grams & 713.69 grams pure).
Total of 9y 9m with NPP of 5*y.
Appellant voluntarily returned to Australia in custody to face the above charges. He was later charged with offences arising out of different facts.
Whether extradited to Australia - whether surrendered to Australia - whether entitled to rely on speciality rule.
Whether sentence manifestly inadequate.
Conviction appeal dismissed.
Crown appeal allowed: resentenced to 13*y with NPP of 8y.
44

HASSEN, Steven - CCA, 15.2.2002
Kirby & Buddin JJ
Citation: R v Hassen [2002] NSWCCA 25
Sentence appeal.
1 x BE&S.
4y with NPP of 3y.
A house was broken into by removing a glass window at the rear. Two TV sets, one video recorder, head phones, dolls & earrings were stolen. An eye witness gave evidence for the Crown, saying he knew the appellant & recognised him on the day of the offence by his 'ginger hair', amongst other things. He knew where he lived. He also knew the appellant's wife. He said he saw the appellant go to the back fence & pass a TV set over the fence to his wife . These observations were made over a number of minutes, although the appellant had no idea he was being watched.
Remorse - failure to make finding & take into account - special circumstances - sentence manifestly excessive.
Appeal dismissed.
45

BUCKLEY, Robin Andrew - CCA, 22.2.2002
Meagher JA, Wood CJ at CL, Bell J
Citation: R v Buckley [2002] NSWCCA 44
Sentence appeal.
17 counts of financial dishonesty, some counts arising under NSW legislation, others Commonwealth legislation. Sentenced to total of 8y with NPP of 6y.
Described as 'one of the most serious examples of this sort of fraudulent behaviour'and 'no present prospect of any refund'What appellant did was approach various investors & request them to invest sums of money. Many did. The sums of money involved varied, some were $50,000 & more, others less. He claimed to deal in the currency exchange & told victims the funds were held in separate accounts & that he never actually used that money, but that it was used as security to allow the appellant to trade on their behalf. He said he guaranteed making a profit by undertaking hedging. This was totally untrue. Not once did the appellant trade any money on any foreign currency exchange. He used the money, to a great extent, for his own benefit. Total amount of money involved was in the order of $1 million.
Application to vary sentence - whether NPP could be reduced.
Appeal dismissed.
46

MANASSEH, Maurice Showa - CCA, 25.2.2002
AUSTIN, Leslie Raymond
Sheller JA, Simpson & Howie JJ
Citation: R v Manasseh and Austin [2002] NSWCCA 27
Conviction appeals; &
Crown appeals.
Creating a false or misleading appearance of active trading in shares on the Australian Stock Exchange.
Trial judge ordered each appellant be released without sentence being passed upon giving security, without sureties, by recognizance that each be of good behaviour for a period of 3 years.
Appellants were business associates. The charges against them were based on evidence relating to 17 securities transactions, 10 of which involved M & 9 of which involved A. Both were involved in 2 of the dealings. Majority of transactions relied upon by Crown were between trust companies which held assets in trust for beneficiaries associated with M, & between trust companies holding assets in trust for beneficiaries associated with A. Although Crown opened its case based on common purpose, it abandoned that during the hearing & relied upon the deeming provisions in s.998(5) Corporations Law.
Corporations Law, s.998 - 'relevant transaction' - 'interest' - 'beneficial ownership' - burden of proof.
Crown appeals: whether sentences manifestly inadequate - appeals dismissed.
Conviction appeals allowed: verdict of acquittal entered in favour of each appellant.
47

ZURITA, Victor Augusto - CCA, 13.2.2002
Hodgson JA, Levine & Howie JJ
Citation: R v Zurita [2002] NSWCCA 22
Conviction appeal.
1 x aggravated sexual assault.
12m with NPP of 9m.
Complainant, aged 12 years at the time of the alleged offence, was appellant's stepdaughter. The fact that she was under the age of 16 was the matter of aggravation.
On appeal, appellant submitted that because, by reason of the manner in which evidence of good character was considered both by the trial judge & counsel, appellant was denied the ability to place evidence before the jury that he had no convictions for offences of the nature for which he was on trial.
Priors include larceny; mid-range PCA & being an unlicensed driver; assault which was found proved but dismissed under s.556A Crimes Act. That assault was committed against complainant's mother shortly after their divorce.
Evidence of complaint - whether refusal to allow accused to raise character in part gave rise to miscarriage of justice.
Appeal allowed: new trial ordered.
48

SING, Shane Richard - CCA, 13.2.2002 - 54 NSWLR 31
Hodgson JA, Levine & Howie JJ
Citation: R v Sing [2002] NSWCCA 20
Conviction appeal.
1 x B&E dwelling house & commit sexual assault in circumstances of aggravation; 1 x sexual intercourse without consent
7y with NPP of 4*y.
After attending a concert, complainant returned home, where she lived alone, to find the lights inside her home were on. When she went inside she saw the dining room window was open. She was then attacked by a man who used a knife in forcing her to submit to a series of aggravated sexual acts. Afterwards, the attacker tied the complainant's wrists & feet. He then took a jewellery box containing imitation jewellery, a videotape & a packet of Christmas bonbons & placed them into a black sports bag belonging to the complainant. After attacker left, complainant freed her feet, went to the lounge room where she discovered her telephone, answering machine, TV & video recorder were missing. She ran, naked & with her hands still tied, to a house across the road. Police were called & she was taken to hospital.
DNA evidence - persons who actually carried out tests not called - duties of prosecutor.
Hearsay evidence - expert analysis of DNA evidence - whether based on hearsay - whether should be excluded as prejudicial.
Appeal allowed: new trial ordered.
49

DUDGEON, Adam Jason - CCA, 1.2.2002
Ipp AJA, Grove & Dowd JJ
Citation: R v Dudgeon [2002] NSWCCA 41
Sentence appeal.
1 x aggravated robbery with corporal violence; 3 x armed robbery; + Form 1 offences.
Total of 7y with NPP of 5*y.
Above offences involved applicant robbing fast food outlets & Rathmines Cellars.
Aged 28 at time of sentence - priors - previously imprisoned - married - 2 children - alcohol & drug problem.
Sentencing principles - totality - special circumstances.
Appeal dismissed.
50

KEIR, Thomas Andrew - CCA, 28.2.2002 - 127 A Crim R 198
Giles JA, Greg James & McClellan JJ
Citation: R v Keir [2002] NSWCCA 30
Conviction appeal.
Murder.
24y with NPP of 18y.
Appellant's wife disappeared. It was the Crown case that the appellant had murdered his wife & buried her body beneath the foundations of the house. Strong smells came from beneath the house & there was disturbance of its structure & the ground. There was evidence that as from the evening during which she disappeared, the wife had not sought access to her son, nor had she contacted her parents or used her bank account. There was evidence from persons claiming to have either seen her or of having had phone contact with her since the evening of her disappearance. Some bones were found which were the subject of DNA evidence. On the Crown case, the bones were those of the appellant's wife. DNA analysis revealed that there was a likelihood that the DNA profile showed that the bones were more likely to be those of a child of the appellant's wife's parents than the bones of a child of a random mating in the Australian population. It was left to the jury that there was a 660,000 to one chance that the bones were those of the appellant's wife rather than of any other person.
Prosecutor's fallacy - summing up failed to correct it.
Appeal allowed: new trial ordered.
51

MacDONNELL, Glen Lawrence - CCA, 5.3.2002 - 128 A Crim R 44
Wood CJ at CL, Sully & Dowd JJ
Citation: R v MacDonnell [2002] NSWCCA 34
Crown appeal
Supply large commercial quantity heroin - 9y with NPP of 4*y;
supply large commercial quantity methylamphetamine - 7y with NPP of 4y (concurrent);
supply cocaine - FT 2y (concurrent).
Police officers conducted a covert investigation into suspected drug activities of respondent & his nephew between 1997 & 1998. Large quantities of heroin, methylamphetamine & cocaine were seized. Respondent initially pleaded not guilty but changed his plea to guilty during the trial. Sentencing judge concluded respondent was a substantial dealer. The sentences were ordered to be served concurrently because the sentencing judge held that each offence was part of one continuous exercise.
Manifest inadequacy of sentence due to significant role played by respondent in supply - trial judge incorrectly assessed respondent's level of contrition & utilitarian value of late plea of guilty - discount for assistance erroneously applied wholly to the NPP - excessive weight given to subjective circumstances - accumulation of sentence more appropriate than concurrency due to duration, frequency & volume of drug supply.
Appeal allowed: resentenced to total of 11y with NPP of 7y.
52

CARRION, Roy - CCA, 5.3.2002 - 128 A Crim R 29
Wood CJ at CL, Sully & Dowd JJ
Citation: R v Carrion [2002] NSWCCA 21
Crown appeal.
Knowingly take part in supply of ecstasy; knowingly take part in supply of cannabis leaf.
3y PD.
On 26.5.2000, the CCA delivered judgment in relation to a Crown appeal against sentence (see R v Carrion 49 NSWLR 149; 113 A Crim R 39). The appeal was allowed & respondent was sentenced to 3y with NPP of 2y 3m. On the day judgment was handed down, respondent was not present & a warrant for his apprehension was issued. This warrant was executed some 14 months later & respondent was returned to custody. In the meantime, the orders that the Court had announced were not perfected so that the DC was not notified of them & the indictment was not endorsed. When the matter came back before the Court, the Crown asked it to amend the commencement date of sentence to the date on which respondent was returned to custody. The Crown asserted the Court had the power to perfect the clear intention that it earlier expressed & that this should be achieved by varying the commencement date. Crown submitted this power had been exercised in the past ( R v Ponfield [1999] NSWCCA 442), that this power arose by reason of the Court's inherent jurisdiction to amend orders to accord with its intention, as expressed in the Slip Rule, and that the power additionally arose in this case as the judgment had not been perfected.
Jurisdiction to vary orders to amend custodial sentence date - correction of windfall to respondent created by failure to appear at sentencing.
Appeal allowed: resentenced to concurrent terms of 3y with NPP of 2y 3m on each count.
53

NALE, Jolane - CCA, 5.3.2002
Giles JA, Greg James & Kirby JJ
Citation: R v Nale [2002] NSWCCA 31
Conviction and sentence appeal.
1 x GBH with intent to murder; in the alternative maliciously inflicting GBH with intent to do so.
Found guilty on the 1st charge.
12y with NPP of 9y.
Principal issue at trial was whether the victim's injuries were caused by the appellant or by the co-offender (who was a Crown witness). The victim was severely injured, suffering a depressed fracture of the right frontal bone over the forehead, bruising to the frontal lobes of the brain & a cracked skull at the back. The Crown witness had been convicted for inflicting GBH on the basis of joint criminal enterprise. During the appellant's trial, this fact was brought out in cross examination. The trial judge gave an explanation on that issue, however, this explanation introduced irrelevant & prejudicial material.
Error in directing jury as to basis of conviction & sentence of co-offender.
Appeal allowed: new trial ordered.
 

55

FRANCIS, Russell Geoffrey - CCA, 8.3.2002
Stein JA, O'Keefe & Buddin JJ
Citation: R v Francis [2002] NSWCCA 51
Crown appeal.
2 x detain for advantage and cause injury.
Concurrent terms of 3y with NPP of 12m were imposed.
Respondent & 2 co-offenders (1 male, the other female) detained 2 male victims over the night & morning of 31/8 & 1/9/2000. The respondent & the male co-offender repeatedly assaulted the victims during this time. Although the male co-offender had the prime interest in detaining the victims, the respondent was prepared to very actively & violently assist him in the commission of the offences, described as a 'reign of terror'.
Whether sentence manifestly inadequate - discretion to re-sentence.
Appeal allowed: resentenced to 4y with NPP of 2y.
56

GONG, Xin - CCA, 6.2.2002
Wood CJ at CL, Sully & Dowd JJ
Citation: R v Gong [2002] NSWCCA 43
s.5F appeal against interlocutory judgment.
The trial judge certified that the judgment was an appropriate one for determination on appeal. The question on appeal was whether the trial judge was in error in holding that:
(1) the Crown has to prove that the accused had not given, at the time of transfer, a report as required by s.15(1) of the Financial Transaction Reports Act 1988 in respect of his transfer of $160,000 in Australian currency notes out of Australia rather than to prove that the accused knew that he had not given such a report in respect of such transfer; and
(2) a belief of the accused that a report need be given only for money brought into Australia, could not operate as a defence to a charge brought under s.15(1) of the Act in respect of moneys transferred out of Australia.
Whether Court has jurisdiction to entertain, pursuant to s.5F, the appeal covered by the judge's certificate.
Held: No jurisdiction to entertain proceedings.
57

RICHARDS, William John - CCA, 28.2.2002 - 128 A Crim R 204
Hodgson JA, Levine & Howie JJ
Citation: R v Richards [2002] NSWCCA 38
Conviction and sentence appeal.
Robbery in company.
5y with NPP of 3y.
The above offence occurred after a woman lured the victim outside a hotel. Victim gave evidence that the woman demanded money from him, whereupon he handed over his wallet. One of the co-offenders (the appellant's cousin) gave evidence substantiating the victim's evidence that it was the appellant who punched the victim & took his keys & phone.
No evidence of any statement by accused upon arrest - accused gives no evidence at trial - absence of directions - no application for directions - trial counsel's affidavit - whether miscarriage of justice.
Appeal dismissed.
58

REEVES, Melissa Kay - CCA, 13.2.2002
Hidden & Buddin JJ
Citation: R v Reeves [2002] NSWCCA 33
Sentence appeal.
Pervert the course of justice.
Applicant was originally sentenced to a suspended sentence of 18m with a NPP of 12m, conditional upon her entering into a bond which had a number of conditions attached to it. Applicant failed to comply with those conditions & once more appeared in the DC & was sentenced to a custodial sentence of 18m with a NPP of 12m.
The circumstances of the offence of pervert the course of justice arose in 1995 when applicant & her brother were in custody at Windsor Police Station, each having just been sentenced to terms of imprisonment & awaiting transfer to prison. Applicant had just received her 1st custodial sentence for taking part in the cultivation of a prohibited plant & failing to attend court for which she received 1m FT. Her brother received 3m. Whilst in the police station, applicant removed 2 warrants from the charge room counter pertaining to her brother's custodial circumstances which she hid beside the counter in the charge room. This act described by the CCA as a spontaneous act. Applicant's brother was released after having only served 1m of the sentence imposed upon him. Applicant & her brother were subsequently arrested & the brother then served the balance of his term. Applicant made full admissions to police.
Stale offence - special circumstances.
Appeal allowed: resentenced to 15m with NPP of 9m.
59

NGUYEN, Minh Trung - NSW SC, O'Keefe J, 12.2.2002
HOANG, Chien Van
Citation: R v Nguyen; R v Hoang [2002] NSWSC 60
Judgment on application by Crown for leave to cross-examine witness pursuant to s.38 Evidence Act 1995.
Trial involved the death of a young person, the wounding of another & an affray which took place at a snooker centre in Campsie.
Crown witness gave evidence unfavourable to the Crown. The witness gave evidence of which he had or may be supposed to have had actual knowledge but in his examination in chief, the witness did not make a genuine attempt to give correct evidence. The witness, on a previous occasion, made a statement inconsistent with a material part of the evidence he was giving at trial.
Evidence - effect of s.192(2) Evidence Act - compound verb - meaning and effect of 'is to take'.
Leave to cross examine granted.
60

NGUYEN, Minh Trung - NSW SC, O'Keefe J, 13.2.2002 - 127 A Crim R 102
HOANG, Chien Van
Citation: R v Nguyen; R v Hoang [2002] NSWSC 59
Judgment on application by the Crown for leave to cross examine witness under s.38 Evidence Act 1995.
Evidence - unfavourable witness - application to cross examine unfavourable witness - leave to cross examine unfavourable witness in respect of answers given in cross examination - ambit of s.38 Evidence Act 1995.
Leave to cross examine granted.
61

NGUYEN, Minh Trung - NSW SC, O'Keefe J, 22.2.2002
HOANG, Chien Van
Citation: R v Nguyen; R v Hoang [2002] NSWSC 92
Judgment on application for discharge of jury/jurors.
Two jurors reported events to a sheriff's officer, who subsequently reported the matter to the trial judge. At the conclusion of court that day & at the trial judge's request, counsel attended in chambers & were informed of the events. Both counsel indicated they proposed to seek a discharge of the jury the following morning.
Irregularity - report by jurors of events - discharge of jury or jurors - test to be applied - procedure to determine facts - voir dire examination of jurors by court.
Jury not discharged and neither of the 2 jurors discharged.
62

PRIOR, Raymond John - NSW SC, Michael Grove J, 12.2.2002
Citation: R v Prior [2002] NSWSC 56
Remarks on Sentence .
Murder.
Prisoner bashed & strangled his estranged wife to death when she ended their relationship. He then buried her in shallow grave.
Guilty plea - escalating drug use, starting in early teens - prior convictions for drug-related matters.
Sentenced to 16y with a NPP of 12y
63

DROLLETT, Adam - CCA, 14.2.2002
Mason P, Sully & Levine JJ
Citation: R v Drollett [2002] NSWCCA 13
Crown appeal.
Multiple armed robbery (offensive weapon); aggravated armed robbery; + Form 1 offences (14 similar offences).
Total of 5*y with NPP of 4y 1m 15d.
A number of serious armed robberies were committed by respondent & accomplices on service stations, late at night & in the early hours of the morning. Various weapons used include a knife, a pistol, a screwdriver & a semi-automatic. Respondent was supposed to be serving time for another offence when 5 of the above offences were committed.
Aged 18 at time of offences - youth - drug & alcohol problem - family violence - prior serious juvenile offences.
Appeal allowed: resentenced to total of 7y with NPP of 5y.
64

MFA - CCA, 4.3.2002
Stein JA, Dowd & Buddin JJ
Citation: R v MFA [2002] NSWCCA 49
Application for bail pending determination of an appeal to the High Court.
Assault & commit act of indecency upon male person under 16 - FT 2*y;
homosexual intercourse with same person between age of 10 & 18 - 3*y with NPP of 2*y (concurrent).
Applicant was acquitted of 7 other counts in the same indictment alleging sexual misconduct with same complainant.
Applicant appealed to the CCA against his conviction on both counts. That appeal was dismissed. An appeal against sentence was upheld in respect of the 1st matter. That sentence was reduced, however, this did not affect the overall sentence imposed.
Applicant subsequently filed an Application for Special Leave to Appeal in the HC.
Special or exceptional circumstances.
Application allowed: bail granted upon agreed conditions.
65

KILLICK, John Reginald - CCA, 4.3.2002
O'Keefe J, Smart AJ
Citation: R v Killick [2002] NSWCCA 54
Application to reconsider judgment delivered on 4.1.2002: see R v Killick [2002] NSWCCA 1.
Health problems - diagnosable medical condition - application for further reduction in sentence.
Application dismissed.
66

FMD - CCA, 14.2.2002
Wood CJ at CL, Sully & Dowd JJ
Citation: R v FMD [2002] NSWCCA 14
Crown appeal against interlocutory judgment given in the DC permanently staying proceedings.
1 x incite person under 16 to commit an act of indecency; 2 x sexual intercourse in circumstances of aggravation knowing complainant was not consenting & in the alternative, 2 x sexual assault with person above age of 10 & under age of 16.
Respondent & a female co-offender were originally committed to stand trial. The respondent's matter has a long history of mentions; being stood over; a trial in which the jury failed to reach a verdict; a retrial that started, wherein a jury member indicated a need to be excused; the subsequent discharge of the jury & a fresh jury being empanelled; the discharge of that jury because of the female co-offender being unfit to give evidence. This female co-offender had, after some years, changed her plea to guilty whereupon she received a 3y GBB.
Submitted by the Crown that should the appeal be upheld, respondent could be brought to trial by May, or thereabouts, of 2002. This would mean that there would have been somewhere in the region of a 7* year delay between date of committal for trial & commencement of trial proper.
Appeal dismissed.
67

CHAI - HC, 14.3.2002 - 76 ALJR 628
Citation: The Queen v Chai [2002] HCA 12 (14 March 2002)
Crown appeal against decision of NSW CCA wherein respondent's conviction was quashed & a new trial ordered.
Crown case was that respondent & co-accused asked 3 men to deal with 2 gangsters sitting in car outside nightclub belonging to respondent. Victims were bashed to death. Crown case that respondent & co-accused procured the assault & actively participated in it. Respondent & co-accused convicted of manslaughter. It was accepted that respondent was guilty of manslaughter if he had procured another to commit an unlawful act, which is objectively dangerous & (unintended) death results. CCA allowed conviction appeal on basis that judge's directions may have left the jury with the impression that procuring another to commit a mere technical assault was sufficient to be guilty of manslaughter. The CCA failed to deal with another argument or with remaining grounds.
Manslaughter - unlawful & dangerous act - accessorial liability - requisite mental element - procurement of assault - adequacy of directions on nature of assault procured - directions framed according to issues at trial - duty of CCA to determine all matters raised by grounds of appeal.
Appeal allowed: matter remitted to CCA to determine remaining grounds of appeal.
68

AEM Snr - CCA, 13.2.2002
KEM
MM
Beazley JA, Wood CJ at CL, Sully J
Citation: R v AEM Snr; R v KEM; R v MM [2002] NSWCCA 58
Crown appeals.
2 x aggravated sexual assault; each offender also had one or more offences under s.61J committed against the same victims taken into account on a Form 1 (two 16 year old females).
AEM: 6y with NPP of 4y on each count (concurrent).
KEM: 5y 7m with NPP of 3*y on each count (concurrent).
MM: 5*y with NPP of 4y on count 1; 6y with NPP of 4y on count 2 (sentences to run concurrently).
Each offender pleaded guilty.
Victims were forcibly detained at the home of one of the respondents for more than 4 hours & subjected to a series of sexual assaults by the respondents. Victims were kept separate for a lengthy period of time & subjected to physical violence & numerous death threats. On separate occasions, a knife was produced by 2 of the offenders in a way which could only have provoked fear of death or mutilation in the victims.
Totality - concurrent/cumulative sentences - high level of criminality - general deterrence - pattern of sentencing - double jeopardy - special circumstances.
Whether sentences manifestly inadequate.
Appeals allowed and respondents resentenced as follows:-
AEM: total of 13y with NPP of 9y.
KEM: total of 14y with NPP of 10y.
MM: total of 13y with NPP of 10y.
69

HODGE, Barrie Allen - CCA, 15.2.2002
Hodgson JA, Levine & Howie JJ
Citation: R v Hodge [2002] NSWCCA 10
Conviction appeal.
Murder.
15y with NPP of 7y.
Appellant pleaded not guilty to murder but guilty to manslaughter on the basis of provocation, however, this plea was not accepted by the Crown. He was subsequently found guilty of murder.
Appellant consumed a large quantity of beer & inhaled amphetamine at a party. When he left the party, he hitched a ride home. He was picked up by the deceased, a 63 year old male, who invited him to his home to have some more beer. A short time after drinking more beer, appellant fell asleep. He awoke to find the deceased playing with his genitals & kissing his face & lips. He hit the deceased a number of times with a bricklayer's hammer. Appellant's involvement in the offence only came to light 11 years later.
Whether error in directions to jury relating to a conversation between appellant & a police officer & a subsequent ERISP - whether trial miscarried as a result of admission into evidence - whether trial judge failed to direct jury adequately in relation to appellant's selective silence.
Appeal dismissed.
70

BAYLISS, Gary - CCA, 14.2.2002
Wood CJ at CL, Sully & Dowd JJ
Citation: R v Bayliss [2002] NSWCCA 11
Application for extension of time to appeal against conviction and sentence.
1 x indecent assault; + 2 similar matters taken into account on a Form 2.
9m PD.
Complainant alleged appellant touched her on her vagina on the outside of her clothing while playing a game of hide & seek.
Appellant appeared at a sentence indication upon the basis that he would plead guilty.
Aged 24 at time of offence - priors including 4 x obtain money by deception, 2 x contravene AVO, 3 x assault - previous imprisonment.
Sentence indication hearing improperly sought by Crown - guilty plea - improperly pressured - duties of legal advisers - whether plea of guilty improperly obtained - delay in lodging appeal.
Leave to appeal out of time refused. Appeal dismissed.
71

SMALLBON, Jonathan Andrew - CCA, 14.3.2002
Hidden & Buddin JJ
Citation: R v Smallbon [2002] NSWCCA 37
Sentence appeal.
1st set of offences: 1 x kidnap; 2 x indecent assault; 1 x commit act of indecency with person under 16; 1 x AOABH.
2nd set of offences: 1 x kidnap; 3 x aggravated indecent assault; 2 x AOABH.
Total of 8y with NPP of 5y.
Each set of offences involved applicant kidnapping & performing various sexual acts on a young boy. The 1st set of offences were perpetrated upon a 16 year old boy, the 2nd set upon a 14 year old boy. Threats were made to each of the boys. Violence was used on each boy.
After the commission of the offences involving the 14 years old boy, applicant drove the boy to a police station, allowed the boy to go into the police station to report the matter while he, the applicant, remained in the car-park until he was arrested. He said he did this because he feared that he might have killed the boy if he had not done so. He was on bail for the 1st set of offences at the time of the 2nd set of offences.
Aged 22 at time of offences - guilty plea - remorse - gender disorder - sense of shame, guilt, low self-esteem - attempted suicide - drug abuse - tortured life - personal & general deterrence - exceptional circumstances - no previous convictions.
Whether sentence excessive. No adjustment made for pre-sentence custody.
Appeal allowed: resentenced to total of 7y 9m with NPP of 4y 3m.
72

MURPHY, Brian Joseph - NSW SC, Buddin J, 4.3.2002
Citation: R v Murphy [2002] NSWSC 150
Remarks on Sentence.
Manslaughter.
Offender originally charged with murder. He pleaded not guilty of murder but guilty of manslaughter, which was accepted by the Crown in full satisfaction of the indictment on the basis of medical evidence which established that the offender's capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition such as to attract the operation of s.23A Crimes Act. The deceased was in a relationship with the offender's estranged wife. Early on the morning of the offence, the offender entered the home where his estranged wife was living with the deceased, found the deceased & his estranged wife in bed sleeping, then stabbed the deceased.
Substantial impairment - relevance of general deterrence - future dangerousness - guilty plea - special circumstances.
Sentenced to 7*y with NPP of 4y.
73

CANINO, Charles - CCA, 8.3.2002
O'Keefe J, Stein JA, Buddin J
Citation: R v Canino [2002] NSWCCA 76
Crown appeal.
Knowingly take part in supply of prohibited drug (17.3 kgs cannabis - street value $200,000).
2y suspended sentence.
Cannabis was brought to NSW from South Australia where respondent had been stockpiling it for the purpose of fulfilling an order. Respondent played a major role in the commission of the offence. Other persons had been engaged in the enterprise, although on a lesser scale than that of the respondent.
Whether sentence manifestly inadequate - parity - definition of involvement - comparison of objective involvement in criminal enterprise - comparison of subjective situation of offenders - special circumstances.
Appeal allowed: resentenced to 2y with NPP of 9m.
74

SAAD, Robert Joseph - NSW SC, Sully J, 22.2.2002
Citation: R v Saad [2002] NSWSC 146
Remarks on Sentence.
Murder.
Judge alone trial. The victim was a young woman who had gone to a Christmas party with the accused. At the party, they consumed some ecstasy tablets. Later that night, the accused became obsessed with the idea that the victim molested children. He said he was determined to get a confession out of her. His interrogation of her culminated with him holding her in a headlock & choking her.
Documentary evidence formed the whole of the evidence at trial. The only issue of substance was whether a special defence of not guilty by reason of mental illness was made out.
Psychotic delusion - depression, confusion - defect of reasoning - abnormality of mind - chronic mental illness - requirement for long-term treatment.
Not guilty by reason of mental illness. To be detained in psychiatric ward of hospital at Long Bay Correctional Centre until released by due process of the law.
75

MANDAGI, Krist Tito - CCA, 11.3.2002
Dowd & Greg James JJ, Smart AJ
Citation: R v Mandagi [2002] NSWCCA 57
Conviction and sentence appeal.
Knowingly concerned in the importation of commercial quantity heroin (252.3 kgs). Life with NPP of 25y.
The offence involved a large importation of heroin which was brought into Australia near Port Macquarie on board a speedboat. This was the largest importation of heroin into Australia at the time. Three men aboard the speedboat were immediately arrested by Australian Federal Police. The driver of the speedboat pleaded guilty to being knowingly concerned in the importation & rendered assistance to the authorities. Appellant was the captain of a ship holding a position of about 12 nautical miles off the Australian coast. A Customs vessel, accompanied by an Australian warship, escorted the ship to Port Macquarie. Upon examination of the ship, it was discovered that it had been specially modified to equip it as a smuggling vessel capable of travelling long distances. The appellant claimed to have no knowledge of the modifications. He also claimed to have no knowledge of the drugs.
Lies, knowledge - whether directions inadequate - whether circumstantial evidence direction necessary.
Criminality - parity - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 27y with NPP of 19y.
76

SPAROS, Luke John - CCA, 12.3.2002
Stein JA, Dowd & Barr JJ
Citation: R v Sparos [2002] NSWCCA 52
Crown appeal.
Supply prohibited drug (cannabis leaf); + 2 matters on a Form 1 taken into account (supply cocaine; accessory before the fact armed with intent to commit serious indictable offence).
12m suspended sentence; + a fine of $3,500.
Police undertook surveillance of a large-scale drug supply operation, during the course of which respondent's identity became known as being involved with that operation in the distribution of cannabis. Respondent was using his own mobile phone number which was diverted through a number of other mobile phone numbers. Police intercepted a number of conversations in which a principal in the enterprise was pursuing the respondent for outstanding money. Respondent also received calls from potential purchasers of drugs. He was selling one ounce bags of cannabis for about $180 to $330. In a 2 month period, 13 such transactions took place.
Aged 18 at time of offences - guilty plea - at the time was on a 12m GBB for AOABH for involvement in a murder charge - 39 days spent in custody following arrest for subject offences - continuous employment since late 1999 - in a stable relationship - non-drinker - never used drugs - good reference from employer.
Whether sentence manifestly inadequate.
Appeal allowed: sentence & fine quashed - resentenced to 1y FT.
77

FRAZER, Tracey Ann - CCA, 12.3.2002 - 128 A Crim R 89
Wood CJ at CL, Sully & Dowd JJ
Citation: R v Frazer [2002] NSWCCA 59
Conviction appeal.
Supply trafficable quantity prohibited drug (18.8 grams methylamphetamine)
2y with NPP of 1y.
Police stopped a car in which the appellant, her boyfriend & a female were travelling. Police believed the car contained prohibited drugs. A search of the car revealed capsules in the centre console of the vehicle. Police suspected they contained prohibited drugs. When questioned by a police officer, appellant admitted having a 'bubble'(capsule) on her which she claimed to have found but said she did not know what it contained. She told him it was down the front of her pants. When asked why she put it down the front of her pants, appellant failed to reply. She then reached into the top part of her trousers & removed a small red oval shaped container that had red tape around its centre. She was placed under arrest & cautioned. Appellant also claimed her boyfriend handed the container to her when their motor vehicle stopped at a service station. She said she had intended to return it to him once he had paid for the petrol.
Importance of proper directions as to supply - possession - summing up inadequate - failure to explain - miscarriage of justice.
Appeal allowed: new trial ordered.
78

RADFORD, Brett Stuart - CCA, 12.3.2002
Heydon JA, Dunford & Buddin JJ
Brett Stuart Radford v Parole Board [2002] NSWCCA 70
Application pursuant to s.155 Crimes (Administration of Sentences) Act 1999.
Applicant was sentenced in the DC to 5y with NPP of 3*y following his plea of guilty to an offence of sexual assault upon a young woman. Sentencing judge described the assault as being pursued 'with extraordinary vigour and perseverance..'..
Applicant's parole was revoked following his conviction for an offence of peep and pry, whereupon he received an 18m GBB. Another incident had occurred prior to the commission of this offence whilst applicant was on a contact visit to his daughter. He was charged with aggravated indecent assault, however, this charge was withdrawn by the DPP. Some 16 days later, related AVO proceedings were also withdrawn.
Prior record, including offences of violence but none of a sexual nature - previous convictions although none resulted in a prison sentence - risk of re-offending - failure to admit harbouring sexual deviancy - need for ongoing treatment.
Revocation of parole - review by Parole Board where a further offence is committed - whether Board's decision based on 'false, misleading or irrelevant information'.
Application refused.
79

MEHCUR, Marcus Jan - CCA, 7.3.2002
Spigelman CJ, Grove & Barr JJ
Citation: R v Mehcur [2002] NSWCCA 56
Crown appeal.
Supply commercial quantity methylamphetamine (519.85 grams); supply ecstasy (1.8 grams); supply pseudoephedrine (465.6 grams); supply cocaine (5.4 grams); possess prohibited firearm (a rifle with a silencer attached); + 7 further offences taken into account on a Form 1 (6 weapons & ammunitions charges, one goods in custody charge).
On the 1st charge relating to commercial quantity methylamphetamine + Form 1 matters - sentenced to 4y 4m with NPP of 2y 10m. On the remaining 4 counts, sentenced to fixed terms of 6m & 12m to be served concurrently.
At the time of appeal, the fixed term sentences had all expired.
During the course of police investigating a man who was suspected of drug offences, a number of telephone calls were intercepted. Police became aware of frequent contact between the man under surveillance & the respondent. In due course, they obtained a warrant & a search of the respondent's premises revealed quantities of drugs as well as a number of weapons.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced on 1st count taking matters on Form 1 into account - 6*y with NPP of 4y.
80

MARKISIC & Anor v VIZZA & 16 Ors - CCA, 4.3.2002
Stein JA, Dowd & Barr JJ
Citation: Markisic and Anor v Vizza and 16 Ors [2002] NSWCCA 53
Dragan Markisic removed his daughter from Macedonia during a visit & brought her back to Australia. The child's mother obtained custody in Macedonia & applied under the Hague Convention on the Civil Aspects of International Child Abduction for the return of the child. After a hearing in the Family Court, the court ordered the return of the child. Dragan Markisic applied for a review of that decision but his application was refused. The court ordered the child be taken into custody pending her return to Macedonia & she was placed in the care of foster parents. A subsequent application for a stay was dismissed by the High Court & the following day the child & her mother left Australia on a Qantas plane. Dragan Markisic filed a Statement of Claim in respect of the actions taken by the Commonwealth, the State Central Authorities, their solicitors & counsel, Centacare & Qantas. Dragan & his father filed a Summons which came before McClellan J who ordered that the Amended Summons be struck out & that the 2 applicants be ordered to pay the costs of the defendants. These were the orders against which applicants sought to appeal.
Whether offences capable of prosecution in the Summary Jurisdiction of the SC - indictable offences - abuse of process - Supreme Court Act 1970, s.76 - inherent jurisdiction - whether appeal to CCA competent - costs.
Appeal dismissed with costs.
81

COUSINS, Peter John - CCA, 5.3.2002
Spigelman CJ, Grove J, Smart AJ
Citation: R v Cousins [2002] NSWCCA 81
Crown appeal.
Aggravated dangerous drive occasioning death - 7y with NPP of 4y;
aggravated dangerous drive occasioning GBH - 4y FT.
The above offences occurred during a high speed police pursuit of a stolen vehicle being driven by the respondent, resulting in an accident in which one young man was killed & a young woman severely injured. Respondent suffered serious injury. Evidence that prior to the accident, the stolen vehicle was reaching speeds of 130 to 140 kph.
Guilty plea - aged 37 at time of offences - appalling criminal history, starting at age 17 - multiple driving offences - priors also for car theft, firearms offences, assaults (including on police) escape from lawful custody, possession of drugs, goods in custody, stealing & possessing housebreaking implements - served a number of terms in prison - declared an habitual offender - persistent defiant attitude towards obedience of the law - guilty plea described as 'simply an acceptance by the offender of the inevitable'.
Whether offence fell within worst category of offences of this kind - where gravity extremely high & subjective case for offender weak - whether discount for guilty plea appropriate - whether finding of special circumstances based on rehabilitative prospects appropriate where persistently defiant attitude to law demonstrated.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 8y with NPP of 6y.
82

KENDALL, Jojo - CCA, 19.3.2002
Greg James & Buddin JJ
Citation: R v Kendall [2002] NSWCCA 79
Sentence appeal.
10 x armed robbery; + Form 1 offences (10 x armed robbery; 3 x attempted armed robbery).
Total of 10y with NPP of 6y.
Offences committed with co-accused. Sentencing judge expressed the view that he saw no basis for distinguishing between criminality of the 2 offenders, however, there were some matters of distinction. Applicant did not carry the knife which was used on 21 occasions, although he participated with the knowledge that the co-offender had the knife & he assisted with the commission of the offences by terrorising the victims. Unlike his co-offender, he had prior good character, the co-offender having prior convictions that included robbery in company, supply drugs & arson. The co-offender had a more traumatic childhood than applicant & was a little more than a year younger. Co-offender received 11y with NPP of 7y. The co-offender was successful in his appeal against this sentence, whereupon he was re-sentenced to 9*y with NPP of 5*y (see R v Antecki [2001] NSWCCA 312).
Guilty plea - not previously imprisoned - applicant's age - cumulative sentences.
Parity or relativity between applicant & co-offender - notice of abandonment to be set aside in light of decision of CCA in co-offender's appeal - conceded basis for resentencing.
Appeal allowed: resentenced to total of 8y with NPP of 4y 9m.
83

GUIVARRA, Kyle Raymond - CCA, 5.3.2002
Spigelman CJ, Grove J, Smart AJ
Citation: R v Guivarra [2002] NSWCCA 69
Crown appeal.
1 x malicious wounding.
2y suspended sentence.
Respondent's former de facto was in a relationship with the male victim following the ending of her relationship with the respondent. There was an ongoing dispute with the former de facto over the ownership of a dog. Respondent drove to former de facto's house to raise this issue. The male victim emerged from the premises then struck the respondent with a golf club. A fight ensued. Respondent left the scene, returning shortly thereafter with a long-bladed knife. The fighting resumed. Respondent stabbed the male victim twice in the abdomen.
Aged 32 at time of appeal - early guilty plea - priors, but not since 1993 - not previously imprisoned - raised by mother since age 2 - serious illness as a child - mother now dead - cared for mother in her final illness - little or no contact with father for many years - treatment for addiction to marijuana, anger management - father made contact & became involved with respondent when he was charged with above offence.
Whether miscarriage of judge's discretion - objective gravity of offence - whether sentence manifestly inadequate.
Appeal dismissed.
84

MIRANDA, Abelardo - CCA, 22.3.2002 - 128 A Crim R 362
Sheller JA, Dowd & Kirby JJ
Citation: R v Miranda [2002] NSWCCA 89
Sentence appeal.
Multiple offences under ss.281 & 234 of the Migration Act 1958 (Cth).
Total of 3y 10m with NPP of 2*y.
Applicant carried out activities as a Migration Agent for approx 3 years under the guise of being an Associate of a firm of solicitors. At no time was he licensed to practise as a Migration Agent. From time to time, a legal firm gave legal advice concerning immigration matters. Applicant made applications for visas for a number of people who neither requested nor wanted these visas. He made 'protection'visa applications for these clients, usually by including a false statement as to their persecution at the hands of authorities in their respective countries of origin. These accounts were mostly completely untrue & given without instruction or information by the person seeking to migrate. Applicant received large amounts of money from these clients. The legal firm became concerned when it came to light that the applicant & his staff were using stationery & stamps belonging to the legal firm.
Misleading antecedents - whether sentence manifestly excessive.
Appeal allowed: resentenced to 3y with NPP of 2y, conditional upon applicant entering recognizance for 1y.
85

SHARPE, David Dimitrious - CCA, 20.3.2002
Adams J, Smart AJ
Citation: R v Sharpe [2002] NSWCCA 96
Sentence appeal.
Application for extension of time.
Robbery in company.
4y with NPP of 2y.
Applicant & his co-offender demanded money from a 15 year old male victim sitting at a bus stop. The co-offender threatened to stab him in the chest. The applicant struck the victim across his face with an open hand, threatening to use his fist if the victim did not hand over his money. The incident & subsequent movements of the offenders were captured on closed-circuit television. Police were called & the offenders arrested. The sentencing judge incorrectly stated that it was the applicant who threatened to stab the victim.
Parity - significant mistake of fact by sentencing judge.
Appeal allowed: resentenced to 3y with NPP of 1y 8m 23d.
86

MELHUISH, William John - CCA, 8.3.2002
Stein JA, O'Keefe & Buddin JJ
Citation: R v Melhuish [2002] NSWCCA 85
Conviction and sentence appeal.
1 x supply prohibited drug (methylamphetamine - 20.29 grams); 5 x possess firearm without licence; + a further charge of possess 15.5 grams cannabis taken into account.
The drugs & the firearms were located in appellant's bedroom, as well as scales, plastic bags & a quantity of cash, strongly suggestive of appellant being engaged in the sale of methylamphetamine for profit.
Total of 3y with NPP of 2y.
Prior offences - no previous imprisonment.
Alleged error in failure to exclude finding of gun holster - Rule 4 - affidavit from trial counsel - proviso considered - whether error in not giving proper directions to jury on failure of Crown to call certain police evidence - totality - cumulative sentence.
Appeal dismissed.
87

PEDAVOLI, Dominic Anthony - CCA, 22.3.2002 - 128 A Crim R 137
Sheller JA, Grove & Simpson JJ
Citation: R v Pedavoli [2002] NSWCCA 87
Crown appeal.
Knowingly take part in manufacture of large commercial quantity amphetamine.
4y with NPP of 15m.
Although not the principal, respondent was actively involved in an organisation manufacturing methylamphetamine. Police found a little more than 4 kgs of the drug in his apartment, which was also used by the organisation for storage purposes. He was arrested & 82.8 grams of amphetamine were found secreted in 3 separate packages in his car.
Guilty plea - on bail for another drug offence at the time of the commission of the above offence.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 8y with NPP of 3y 9m.
88

KRAAYMAAT, Andrew Paul - NSW SC, Howie J, 14.3.2002
Citation: R v Kraaymaat [2002] NSWSC 199
Remarks on Sentence.
Murder.
Re-trial - the jury unable to agree upon a verdict at an earlier trial.
Accused stabbed an acquaintance 3 times in the chest following an evening of heavy drinking. He then drove the body to an isolated area & dumped it on the side of the road. The offence was unpremeditated & there was no evidence as to motive.
Long history of alcohol abuse - lengthy record, including possess firearm with intent to kill - loss of temper while intoxicated - some indication of remorse, contrition - low prospects of rehabilitation - likely to serve total sentence.
Sentenced to 18y with NPP of 15y.
89

KUMAR, Prem - CCA, 20.3.2002
Adams J, Smart AJ
Citation: R v Kumar [2002] NSWCCA 95
Sentence appeal.
Extension of time.
Robbery in company; + offences taken into account (resist arrest; offensive conduct).
3y with NPP of 18m.
Applicant & 2 male co-offenders approached 2 young boys, aged 14 & 16. Applicant told the one young boy 'My friend's got a knife. I don't want to have to hurt you.' The young victims were told to go around the corner into an isolated area & applicant told them to empty their pockets. They complied. The offenders decamped with 2 mobile phones & a wallet. One of the victims spoke to his stepfather & all three commenced running after the offenders. The young victim's father stopped a police vehicle in the street & told the driver what had happened. In the meantime, an onlooker had apprehended the applicant. The one young victim immediately identified the applicant, who was arrested. He admitted his part in the robbery to police at the police station, supplied nicknames of his co-offenders, but claimed he did not know their full names or their addresses.
Whether sentence excessive.
Leave to appeal against sentence refused.
90

GORGIEVSKI, Slav Steve - CCA, 15.2.2002 - 129 A Crim R 89
Kirby & Buddin JJ
Citation: R v Gorgievski [2002] NSWCCA 45
Sentence appeal.
1 x use false instrument with intent to induce a person to accept as genuine to another's prejudice; 5 x make false instrument; 4 x use false instrument; possess loaded firearm in public place.
Total of 5y 10m with NPP of 4y 10m.
Applicant opened a bank account in the name of another person, producing supporting documentation. The person whose name he used already had a genuine bank account at another branch of the bank. A telephone transfer of $20,000 was made from the genuine account to the false account. During the following month, applicant withdrew a total of $972,000 from the account. Approximately $2 million was obtained from various financial institutions. Police found the loaded revolver in applicant's possession when he was arrested.
Aged 40 at time of offences - guilty plea - priors include aiding & abetting opening of bank account in false name, aid & abet false statement to obtain a passport.
Discount for guilty plea, assistance to authorities - special circumstances.
Appeal allowed: resentenced to total of 5y 3m with NPP of 3y 3m.
91

CRAM, Justin - CCA, 21.3.2002
Greg James & Buddin JJ
Citation: R v Cram [2002] NSWCCA 83
Sentence appeal.
Dangerous driving causing GBH; drive conveyance without owner's consent; Form 1 matters.
Total of 3*y with NPP of 3y 3m.
Applicant stole a vehicle from a carpark. Police observed applicant in the vehicle later the same day. They approached him, he drove off, then entered a freeway on the wrong side & travelled against the oncoming traffic for approx one kilometre. He collided with 2 cars, then continued driving as he tried to escape. He then collided head on with a truck, which caused applicant's vehicle to rotate & collide with victim's car. Victim sustained serious injuries to his wrist, legs & hands, requiring surgery. Others involved in the various collisions sustained relatively minor injuries.
Aged 31 at time of offences - disqualified from driving at the time - guilty plea - raised in highly dysfunctional family - severe depression following brother's death - strong Crown case - some rehabilitation in custody - priors include driving offences, stealing or illegally using vehicles, drug offences, resist arrest, violent offence - previous imprisonment.
Whether special circumstances - effect of cumulative sentence - operation of Jurisic.
Appeal dismissed.
92

DECHELLIS, John - CCA, 19.3.2002
Greg James & Buddin JJ
Citation: R v Dechellis [2002] NSWCCA 88
Sentence appeal.
B&E and commit serious indictable offence in circumstances of aggravation.
3y with NPP of 2y.
Appellant & co-offender smashed windows & doors of victim's home & threatened victim & his family, including small children. Appellant was armed with a baseball bat. Victim & a neighbour who attempted to intervene were assaulted. Both appellant & co-offender under the influence of drugs & alcohol at time of offence.
Aged 19 at time of offence - early guilty plea - remorse, contrition - youth - health problems (hepatitis C & cirrhosis of the liver) - serving sentence in maximum security - prior convictions, including offences of violence - previous imprisonment.
Appeal dismissed.
93

HALLS, Colleen - CCA, 6.3.2002 - 127 A Crim R 209
HALLS, Francis
Stein JA, O'Keefe & Buddin JJ
Citation: R v Colleen Halls and Francis Halls [2002] NSWCCA 55
Sentence appeal.
Colleen Halls: 5 x obtain credit without disclosing bankruptcy; 4 x obtain credit by fraud - total of 15m with conditional release after 10m.
Aged 41 at time of offences - mother of heroin addicted son - no priors.
Francis Halls: obtain credit without disclosing bankruptcy - 15m with conditional release after 10m.
Aged 44 at time of offence - no priors.
Applicants made an application for finance to purchase a $38,000 BMW without disclosing their bankruptcy. They defaulted on the repayments, leaving a shortfall of $13,072. Colleen Halls secured further finance for a $45,000 BMW & a Toyota without disclosing her bankruptcy, leaving a shortfall of $34,903.46 & $23,564, respectively. She had made a number of fraudulent statements about her financial status. She also obtained a credit card amount of $8,819.73 & a personal loan of $9,668.46 without disclosing her bankruptcy. In all, applicants obtained $182,000, of which $40,000 remains unpaid.
Need to quantify adjustment required by s.16G Commonwealth Crimes Act - delay - parity - whether sentences manifestly excessive.
Colleen Halls: appeal dismissed.
Francis Halls: appeal allowed - resentenced to 12m with conditional release after 8m.
94

NEWLAND, John Paul - CCA, 5.3.2002
Spigelman CJ, Grove J, Smart AJ
Citation: R v Newland [2002] NSWCCA 64
Sentence appeal.
Wound with intent to do GBH; possess shortened firearm; use unlicensed firearm; 3 x common assault.
Total of 12y with NPP of 8y.
Details of offences not stated.
Applicant asserted that a series of sentences imposed upon him were not backdated to reflect a period of pre-sentence custody of 2m 5d. The sentencing judge was dealing with sentences on 6 counts & the sentences he imposed had to be fitted in with sentences imposed by other judges. Leave was sought to appeal against the one sentence still not fully served & the consequent alteration of the commencement date of that sentence.
Appeal allowed: sentence backdated.
95

MOFFITT, Drew Anthony - CCA, 20.3.2002
Stein JA, O'Keefe & Buddin JJ
Citation: Moffitt v R [2002] NSWCCA 73
Conviction appeal.
1 x detain with intent to hold for sexual gratification; 1 x sexual intercourse without consent; 1 x unlawfully administer stupefying drug (temazepam) with intent to commit sexual assault.
Complainant was a prostitute. Appellant stood trial for 2 counts of sexual intercourse without consent, however, the jury returned a verdict of not guilty on the one count.
Inconsistent verdicts - defies test of logic & reasonableness outlined in R v MacKenzie (1996) 190 CLR 348 - whether convictions unsafe & unreasonable.
Appeal dismissed.
96

MAHER, Robert Lee - CCA, 11.2.2002
Hidden & Kirby JJ
Citation: R v Maher [2002] NSWCCA 100
Sentence appeal.
BE&S.
4y with NPP of 3y, consecutive on previous sentence.
Wearing balaclavas, applicant & co-offenders broke into a supermarket. An alarm was set off & applicant & co-offenders fled, taking a large quantity of cigarettes.
Aged 21 at time of offence - unemployed - on bond at time of offence - disrupted childhood - significant injuries in car accident - priors - previous imprisonment.
Totality - special circumstances.
Appeal allowed: resentenced to 4y with NPP of 2y 3m.
97

PICKER, Eric Russell - CCA, 20.3.2002
Beazley JA, Bell J, Smart AJ
Citation: Picker v R [2002] NSWCCA 78
Conviction and sentence appeal.
2 x sexual intercourse without consent; 1 x possess a weapon (rifle) with intent to commit a sexual assault.
Total sentence of 8*y with NPP of 6y.
Appellant & complainant were acquaintances. Complainant alleged the sexual intercourse complained of was not consensual & that appellant was armed with a rifle at the time. Appellant claimed he had collected the weapon some time afterwards & that the intercourse was consensual & instigated by the complainant.
Impermissible cross-examination by Crown driving accused to say complainant was lying & to the effect that the reason his counsel had not asked her about certain matters was because he had recently made them up - difficulties compounded by inadequate re-examination & prosecutor's florid address - oath against oath - credibility of complainant & accused critical.
Appeal allowed: new trial ordered.
98

RICHARDS, Warren - CCA, 21.3.2002
Greg James & Buddin JJ
Citation: R v Richards [2002] NSWCCA 84
Sentence appeal.
BE&S; + Form 1 matters (take conveyance without consent of owner; possess goods reasonably suspected of being stolen; possess implements; drive whilst disqualified).
3y with NPP of 2y; licence disqualified for 12m.
Applicant received a 9m suspended sentence conditional upon entering a GBB for a BE&S. He subsequently breached that bond & committed a further BE&S. He was arrested & charged with that later offence after being found in possession of a number of items which were identified by the owner of the premises applicant had broken into.
Aged 29 at time of offence - on bail at the time - married - father of 5 young children - wife & one child with serious medical disability - prior offences include driving, property, drugs, violence - previous imprisonment.
Discount for guilty plea not quantified - ill-health of dependants - 'special circumstances'- sentence backdated & to run concurrently - whether manifestly excessive - whether power existed to order disqualification of licence where no conviction for offence of drive whilst disqualified, it being on a Form 1 - whether power exists to impose 'ancillary orders'in such circumstances.
Appeal dismissed.
99

KARKI, Ivesh - CCA, 18.3.2002
Beazley JA, Hulme & Barr JJ
Citation: R v Karki [2002] NSWCCA 67
Conviction appeal.
Murder.
17y with NPP of 12y.
Appellant, co-offender, deceased & deceased's friends had argued & exchanged insults over a period of hours in a nightclub. A fight broke out, during which appellant & co-offender kicked deceased to the head a number of times. Appellant then stomped on deceased's head while he was on the ground in a defenceless state.
Appellant refused to give evidence at trial. Trial judge directed that the relevance of appellant's failure to give evidence could only go to the value or weight of evidence of the Crown witnesses.
Whether misdirection - proviso - provocation - self-defence.
Appeal dismissed.
100

O'BRIEN, Michael Anthony - CCA, 26.3.2002
Studdert J, Smart AJ
Citation: R v O'Brien [2002] NSWCCA 102
Sentence appeal.
Sexual intercourse without consent.
4y with NPP of 18m.
Applicant & his wife were staying overnight at 26 year old female victim's house for a birthday celebration. The victim went to bed fully clothed & somewhat intoxicated. She awoke to find applicant's hand over her mouth while having sexual intercourse with her. She asked him what he was doing, whereupon he stopped, then left the room.
Aged 28 at time of offence - married - father of 2 young daughters - strong family support - remorse, contrition - priors include offences for driving, drugs - not previously imprisoned.
Intoxication - special circumstances - whether sentence excessive.
Appeal dismissed.
101

CDH - CCA, 3.4.2002
Levine J, Carruthers AJ
Citation: R v CDH [2002] NSWCCA 103
Sentence appeal.
Sexual intercourse with child under 10; attempt sexual intercourse with child under 10; aggravated indecent assault by person in authority with child under 16; Form 1 (aggravated indecent assault).
Total of 6y with NPP of 4*y.
Over a period of 16 months, applicant committed 10 to 15 acts of indecency & sexual assault upon his daughter who was aged between 4 & 5.
Aged 31 at time of 1st offence - victim of abuse as a child - contrition, remorse, voluntary admissions without which there would have been no case against applicant - protective custody - no priors.
Whether sentence excessive.
Appeal allowed: resentenced to total of 5y with NPP of 3y 3m.
102

CHAN, Chi Keung - CCA, 19.3.2002 - 128 A Crim R 119
Dowd & Greg James JJ, Smart AJ
Citation: R v Chan [2002] NSWCCA 71
Sentence appeal.
Knowingly concerned in importation of commercial quantity heroin.
13y with NPP of 10y.
Applicant piloted a speedboat launched from a larger vessel in international waters to a beach near Port Macquarie. He & 3 accomplices were arrested on the beach with 31 bags containing 253.3 kgs pure heroin. (See also: R v Mandagi [2002] NSWCCA 57.)
Aged 44 at time of offence - assistance to authorities - early guilty plea - general deterrence - good prospects of rehabilitation - protective custody required - no priors.
Whether sentence excessive.
Appeal dismissed.
103

SHANNON, David Austin - CCA, 25.3.2002
Levine J, Carruthers AJ
Citation: R v Shannon [2002] NSWCCA 115
Sentence appeal.
Use offensive weapon with intent to commit indictable offence; possess unlicensed pistol.
Total of 6*y with NPP of 4*y.
Applicant & 2 co-offenders, who were all members of a motor cycle club, were on an interstate car journey when they came upon the victim riding his motor cycle. The victim was a member of a rival motor cycle club. Applicant fired shots from a pistol, wounding the victim in the chest & hitting the motor cycle's rear tyre. The car was subsequently stopped & occupants searched by police. Two pistols were found. A later search revealed a revolver hidden in the car's door cavity.
Aged 42 at time of offence - guilty plea - unemployed - prior driving & property offences - previous imprisonment.
Whether special circumstances.
Appeal dismissed.
104

ICC - CCA, 28.3.2002
Studdert J, Smart AJ
Citation: R v ICC [2002] NSWCCA 119
Sentence appeal.
2 x aggravated sexual assault without consent by person in authority; 1 x aggravated indecent assault; +Form 1 (10 x aggravated indecent assault).
Total of 4*y with NPP of 3y 4m 13d.
Over a period of almost 4 years, appellant performed a series of sexual & indecent assaults upon his teenage daughter, including touching her breasts, kissing her bottom, kissing her vagina, inserting his tongue into her vagina, masturbating in her presence & forcing her to masturbate him.
Aged 44 at time of 1st offence - early guilty plea - prolonged pattern of offending - contrition, remorse - serious sexual difficulties in marriage - marriage breakdown - willingness to seek counselling & enter sex offender programme - suicide risk - no priors.
Whether sentence excessive.
Appeal dismissed.
105

OLENIK, Victor Barry - CCA, 21.3.2002
Greg James & Buddin JJ
Citation: R v Olenik [2002] NSWCCA 90
Sentence appeal.
Supply prohibited drug (methylamphetamine); supply prohibited drug (cannabis leaf); Form 1 (supply prohibited drug, goods in custody, possess prohibited weapon).
Total of 2y 11m with NPP of 18m.
Police attended a car accident in which appellant was seriously injured. Whilst at the scene, police found appellant in possession of methylamphetamine & cannabis leaf. A subsequent search of appellant's premises revealed further quantities of drugs, drug paraphernalia & several unlicensed firearms.
Aged 51 - guilty plea - co-operation with police - serious injuries resulting in permanent incapacity - further surgery required - depression - remorse - young family - good record since 1971 - prior driving, property, weapon, public order offences - previous imprisonment.
Medical condition - whether error in sentencing - whether court should have considered some other sentence warranted in law.
Appeal dismissed.
106

HOKAFONU, Pulusila - CCA, 5.4.2002
Stein JA, O'Keefe & Buddin JJ
Citation: R v Hokafonu [2002] NSWCCA 92
Conviction appeal.
Conspiracy to import commercial quantity cocaine.
8*y with NPP of 5y.
Appellant entered into a conspiracy with 2 others to import cocaine into Australia from Los Angeles. He agreed to tape packages of cocaine to his body, board a flight to Sydney & while on the plane remove the packages & place them in a rubbish receptacle. The packages were later to be retrieved by an associate.
Reliability of witness - adequacy of directions.
Appeal dismissed.
107

GRUBER, Robert Raymond - CCA, 20.3.2002
Adams J, Smart AJ
Citation: R v Gruber [2002] NSWCCA 120
Sentence appeal.
2 x assault police officer in execution of his duties.
Total of 1y 10m with NPP of 1y 5m.
Applicant was under the influence of alcohol when he threatened family members with violence whilst armed with knives. Police were called. Whilst attempting to arrest the applicant, they were threatened with a knife & one officer was bitten on the arm. Applicant was infected with hepatitis B & C.
Aged 36 - early guilty plea - long history of drug & alcohol abuse - drug-related mental illness - learning & educational difficulties - priors include property, drug, driving, weapon, assault offences, assault with intent to rob, fail to answer bail, breach suspended sentence, breach CSO.
Mental illness - psychiatric evidence - whether error in dismissing psychiatric evidence as virtually irrelevant.
Appeal allowed: resentenced to total of 1y 10m with NPP of 1y 3m.
108

M - CCA, 12.3.2002
Heydon, JA, Dunford & Buddin JJ
Citation: R v M [2002] NSWCCA 66
Conviction and sentence appeal.
Sexual intercourse with child under 10; aggravated indecent assault against child under 10.
Total of 6y with NPP of 3y 4m.
Appellant was the next door neighbour of the 6 year old female complainant. Complainant frequently visited appellant & helped him look after his birds. On the day of the offences, appellant placed a vacuum cleaner nozzle on complainant's legs, pulled her pants aside, then placed the nozzle on her genitals. He then took her hand & made her masturbate him. He also placed his penis into complainant's genitalia.
Aged 40 at time of offences - ill health - priors include drive manner dangerous, drive speed dangerous, drive whilst disqualified, fraudulent use of licence, offensive manner, resist arrest, assault - no previous imprisonment.
Fresh evidence - DNA evidence - whether verdict unreasonable - whether miscarriage of justice - whether sentence manifestly excessive.
Appeal dismissed.
109

KADDOUR, Kalid - CCA, 5.4.2002
Stein JA, Dowd & Buddin JJ
Citation: R v Kaddour [2002] NSWCCA 112
Conviction and sentence appeal.
Dangerous drive causing GBH; drive whilst disqualified.
Total of 6y with NPP of 4*y; licence disqualified for 4y with fine of $1,000.
Appellant was travelling at about 100 kph in a 60 kph zone when his car crossed the median strip & collided with the victim's car. Numerous witnesses saw the appellant driving at a very high speed just before the accident.
Aged 28 at time of offence - bad record for traffic offences, including repeated speeding offences - priors include driving, property, violent offences - not previously imprisoned.
Fresh evidence suggesting mechanical defect in car - whether sentence manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 4y with NPP of 3y.
110

LU, Chien Wen - CCA, 4.4.2002
Dowd J, Smart AJ, Einfeld AJ
Citation: R v Lu [2002] NSWCCA 114
Conviction appeal.
Robbery in company.
12m suspended sentence.
Victim entered one of the lifts in the large apartment block where he lived. As the doors were about to close, appellant put his hand out to stop the lift, then entered it. He held the victim in a headlock, then dragged him into the lift lobby where 2 co-accused & 2 girls were standing. Appellant took victim into another lift with the co-accused & girls. Once inside the lift, victim was hit in the stomach, back, legs & back of his head. He was then pulled out of the lift into the internal car park where he was further assaulted. His driver's licence & $250 in cash were taken.
Credibility of witnesses - whether verdict unreasonable - whether error in failure to direct verdict of acquittal at conclusion of Crown case.
Appeal dismissed.
111

COOK, Brian Frederick - CCA, 18.3.2002
Dunford J, Carruthers AJ
Citation: R v Cook [2002] NSWCCA 113
Sentence appeal.
AOABH.
18m with NPP of 10m.
Appellant was involved in a drunken brawl at a hotel. Both he & victim sustained injuries. Sentencing judge suspended his sentence on condition he enter a GBB. The bond was subsequently breached when appellant committed offences of malicious damage, use of offensive language & breach of AVO. The full suspended sentence was imposed.
Aged 34 at time of offence - guilty plea - poor criminal record - alcohol abuse - complied with bond for only 25% of term - priors include property, driving, violence, drug offences - previous imprisonment.
Appeal dismissed.
112

KJW - CCA, 28.3.2002
Studdert J, Smart AJ
Citation: R v KJW [2002] NSWCCA 107
Sentence appeal.
Aggravated sexual assault upon person under 16 whilst under authority; aggravated indecent assault upon person under 16 whilst under authority.
Total of 4y 9m with NPP of 2y 9m.
Applicant was the stepfather of the 2 complainants. On 2 occasions, he went naked to the bed of his stepdaughter (aged 11 & 12) & placed her arm on his penis, then moved it up & down along his penis. The other offence involved applicant going to the bed of his 12 year old stepson. He pulled down the complainant's pants, saying he wanted to show him something, then placed his mouth over the stepson's penis & commenced sucking it. The stepson objected & the applicant stopped & told him to forget it had ever happened.
Aged 32 at time of 1st offence - prior good character - full-time employment - good rehabilitation prospects - special custody - no priors.
Special circumstances - specific & general deterrence - whether sentence excessive.
Appeal dismissed.
113

RTB - CCA, 5.4.2002
Spigelman CJ, Wood CJ at CL, Kirby J
Citation: R v RTB [2002] NSWCCA 104
Conviction and sentence appeal.
A number of sexual offences (sexual intercourse & acts of indecency) with person under age of 10.
Charges arose out of allegations made by 2 complainants, who were sisters. At the time of the alleged offences, one was aged 8, the other 5. The appellant was 16 years old at the time. The appellant was well known to the complainants' family, the complainants' father being the coach of a sporting team with which appellant was involved. From time to time, appellant was asked to baby-sit the complainants & their siblings. Both complainants made complaint to their father. An order was made that there should be separate trials in respect of each complainant.
In the 1st trial, there were 3 counts. The appellant was convicted on one count & received a sentence of 2y with a NPP of 18m. He was released to parole following the expiration of the NPP.
The 2nd trial involved 2 counts. Appellant was convicted on both counts. No mention made of sentence.
Evidence - admissibility & relevance of history given to doctor - whether relevance should be limited under s.136 - comments by judge where credibility the issue - leave to cross examine on prior consistent statements - issues raised by s.192(2)(d) Evidence Act.
1st trial: Appeal allowed: verdict of acquittal entered.
2nd trial: Appeal dismissed.
114

TRIM, Brian - CCA, 19.3.2002
Greg James & Buddin JJ
Citation: R v Trim [2002] NSWCCA 82
Sentence appeal.
2 x obtain financial advantage by deception.
Total of 6y 9m with NPP of 4y.
The 2 counts encompassed over 800 acts of dishonesty over a long period. The 1st count involved obtaining $232,433.10, the 2nd count $213,200. The total amount taken by the applicant was $445,603.10.
Applicant was a clerk employed by a firm of accountants. He was responsible for maintaining & operating a trust fund established by a deceased husband & wife for the benefit of their children. That fund managed various business enterprises. Applicant forged signatures of relevant signatories in order to effect fraudulent drawings from the accounts of the companies operated by the trust.
Aged 56 at time of 1st offence, aged 62 at time of final offence - guilty pleas - gambling addiction - drinking problem - no priors - remorse - personal & general deterrence - ill-health.
Maximum sentences imposed, less discount - failure to consider favourable subjective features - error in sentencing.
Appeal allowed: resentenced to 6y with NPP of 3y.
115

FINN, Paul John - CCA, 19.3.2002
Greg James & Buddin JJ
Citation: R v Finn [2002] NSWCCA 86
Sentence appeal.
6 x make false instrument; + Form 1 (15 x make false instrument, 2 x obtain benefit by deception).
Total of 3y with NPP of 2y.
Over a period of time, appellant, who was the manager of a smash repair workshop, falsified insurance claims involving damaged vehicles, including a false claim involving his own vehicle. The claims were assessed & repairs carried out by his workshop & payments received from insurance companies pursuant to the false claims.
Aged 49 at time of 1st offence - guilty plea at earliest opportunity - greater criminality than co-offenders - favourable prospects of rehabilitation - unlikely to re-offend - depressive illness - post-traumatic stress disorder - prior driving offence - not previously imprisoned.
Totality - parity - general deterrence - special circumstances.
Appeal allowed: resentenced to total of 2y with NPP of 16m.
116

RADFORD, Stephen Charles - CCA, 28.3.2002
Studdert J, Smart AJ
Citation: R v Radford [2002] NSWCCA 122
Sentence appeal.
Supply prohibited drug (heroin) on an ongoing basis; 2 x knowingly take part in supply of prohibited drug (heroin).
Total of 6y with NPP of 4*y.
The applicant was the subject of an authorised police undercover operation. He was running a retail drug supply business trading in small quantities.
Combination of facts - no compelling subjective features - reliance on hearsay material in reports - no evidence of prime facts from applicant & not sufficient evidence as to other matters - importance of quality evidence.
Guilty plea - bad criminal record - plenty of warnings - on recognizance at time of offences - psychotic illness - general deterrence - protective custody.
Whether sentence excessive.
Appeal dismissed.
117

FITZGERALD, Daniel Jamie - CCA, 11.2.2002
Hidden & Kirby JJ
Citation: R v Fitzgerald [2002] NSWCCA 99
Sentence appeal.
2 x BE&S; + Form 1 (2 x malicious damage to property).
Total of 3y 4m with NPP of 2*y.
Applicant & a co-offender broke into 2 clubs. Total amount of money taken was $13,000. During the course of each of the break-ins, damage was caused to property & equipment to the tune of $70,000.
Aged 26 at time of offences - guilty plea - lengthy criminal record - supportive family - educated to Year 10 - on disability pension following injury to hand at work - history of drug abuse.
Diabetic - effect on classification within gaol system - discount.
Appeal dismissed.
118

CURRY, Raymond Arthur - CCA, 2.4.2002
Heydon JA, Studdert & Buddin JJ
Citation: R v Curry [2002] NSWCCA 109
Sentence appeal.
2 x manslaughter.
Total of 10y with NPP of 6y.
Applicant & co-offenders gathered at a caf* in the CBD, then travelled in 2 cars to a house in Bankstown in order to ambush the 2 male victims. Applicant & co-offenders were in possession of rubber gloves, surgical tape & rope. During the ambush, both victims were shot dead. One victim was shot 7 times, the other shot twice.
Aged 24 at time of offence - remorse - assistance to new inmates - priors include assault, assault police - not previously imprisoned.
Appeal dismissed.
119

MATHIESON, Steven Robert - CCA, 27.3.2002
Sheller JA, Grove & Simpson JJ
Citation: R v Mathieson [2002] NSWCCA 97
Crown appeal.
1. Escape lawful custody - FT 9m; 2. Steal MV - 22*m; 3. Robbery in company - 11m; 4. Robbery in company - 18m; 5. Assault with intent to rob whilst armed with offensive weapon - 13m; 6. BE&S - 12m.
A NPP of 15m was fixed in respect of all offences other than the escape.
Respondent escaped by walking out of minimum security prison. He & a co-offender then stole a MV. Respondent assaulted a woman & stole her handbag. He threatened to stab another victim & assaulted a young man with a wheel brace. He also broke into a house & stole alcohol, watches & some cheques.
Findings of fact not supported by evidence - sentences in total manifestly inadequate.
Appeal allowed in relation to counts 3,4 & 5: resentenced on each count to 3y 9m with NPP of 1y 9m.
120

CURRIE, Desmond Jeffrey - CCA, 12.4.2002
Heydon JA, Dowd & Whealy JJ
Citation: R v Currie [2002] NSWCCA 126
Conviction appeal.
Appellant was charged with aggravated sexual intercourse without consent. After retiring to consider its verdict, the jury asked a question seeking confirmation about whether they could find a verdict of not guilty of the aggravated sexual intercourse without consent, but find a verdict of guilty of sexual intercourse without consent. After some debate with defence counsel, in which counsel expressed concern that because the trial was run without an alternative count, the trial judge should tell the jury that it was not a question he could answer. The jury returned to court & the trial judge answered their question in the affirmative. The jury retired further to consider its verdict & returned almost 2 hours later. The jury acquitted on the count charged but convicted on the 'alternative'count.
Whether fair trial occurred - directions by trial judge - failure to give jury instruction as to varying possible views of facts of case which might result in verdict of guilty on alternative lesser statutory count - serious procedural irregularity - whether acquittal or retrial appropriate relief to such injustice - whether acceptance of evidence denied appellant fair trial - credibility of complainant - inconsistent evidence - whether verdict of guilty unreasonable.
Appeal allowed: new trial ordered.
121

MJR - 12.4.2002 - 54 NSWLR 368
Spigelman CJ, Mason P, Grove & Sully JJ, Newman AJ
Citation: R v MJR [2002] NSWCCA 129
Sentence appeal.
6 x sexual misconduct; + a further 10 matters on a Form 1 (11 offences involved sexual intercourse by way of digital penetration, the remaining 5 involved indecent assault which arose from fondling of breasts).
Overall sentence of 9y with NPP of 6y.
Five judge bench sat to consider proposition that in sentencing offender for old offences, where there has been no change in the statutory maximum penalty, but an increase in the severity of sentencing patterns, the Court should take into account sentencing practices as they stood at the time of the commission of the offences.
Other relevant cases: Shore (1993) 66 A Crim R 37; Watson NSW CCA [227] 12.1999; Moon NSW CCA [534] 14.12.2000; PLV NSW CCA [282] 25.7.2001.
Appeal allowed against sentence on counts 4 & 6.
New overall sentence totalling 6*y with NPP of 5y.
122

O'sULLIVAN, Michael John - CCA, 28.3.2002 - 128 A Crim R 371
Sheller JA, Grove & Simpson JJ
Citation: O'sullivan v R [2002] NSWCCA 98
Conviction appeal.
Supply prohibited drug (heroin) - 2y recognizance & payment of $1,000;
self-administer prohibited drug (heroin) - 10m PD.
Police searched appellant's house & found a small amount of hashish. Appellant alleged that he was forced by police to sign a statement to the effect that he was dealing in heroin or else they would say they found him carrying 10 grams of heroin.
Whether confession voluntary - guilty plea - fresh evidence from Police Royal Commission concerning integrity of arresting officers- miscarriage of justice.
Appeal allowed: verdict of acquittal entered on each charge.
123

BWT - CCA, 12.4.2002 - 54 NSWLR 241; 129 A Crim R 153
Wood CJ at CL, Sully & Dowd JJ
Citation: R v BWT [2002] NSWCCA 60
Conviction appeal.
Sexual offences.
There were 3 complainants leading to 3 separate trials. Two of the complainants were daughters of the appellant, the other complainant was his step-daughter.
Appellant was acquitted of all charges in the 1st trial; he was convicted of all charges in the 2nd trial; and was acquitted of all charges in the 3rd trial.
In the 2nd trial, complainant asserted that sexual activity occurred between appellant & her at least twice a week from 1976 (when she was 10 years old) until 1982 when she finally left home. The offences alleged carnal knowledge, indecent assault, sexual intercourse.
Old offences - delay - whether adequate direction concerning Longman warning - pre-trial publicity - whether deprived of fair trial - good character & reputation - alibi evidence - whether verdict unreasonable.
Appeal allowed: new trial ordered.
124

LAFFERTY, James - CCA, 22.3.2002
Dunford J, Carruthers AJ
Citation: R v Lafferty [2002] NSWCCA 118
Sentence appeal.
Aggravated BE&S (offensive weapon).
6y with NPP of 3y.
Occupants returned home to find applicant had broken into it & was still there. Applicant rushed down the stairs, past the occupants, brandishing a screwdriver. He had moved some items enough to constitute asportation for the offence of stealing.
Aged 27 at time of offence - homeless, unemployed - drug addiction - had finished serving a sentence for a similar charge some 2* months prior to instant offence - positive steps towards rehabilitation - supportive mother - priors include dishonesty, violent, driving, drug offences, escape lawful custody - previously imprisoned.
Sentencing statistics - whether sentence excessive - whether special circumstances.
Appeal dismissed.
125

GKW - CCA, 25.3.2002
Levine J, Carruthers AJ
Citation: R v GKW [2002] NSWCCA 130
Sentence appeal.
4 x aggravated indecent assault with person under 16.
Total of 4y with NPP of 2y.
Applicant, who was a friend of the 12 year old victim's family, was alleged to have fondled the victim's breasts on 2 occasions. On one such occasion, he undressed the victim & himself then, kneeling in front of her, he opened her legs & stroke her external genitalia. Another occasion involved him rubbing victim's breasts, kissing her & inserting his tongue into her mouth.
Aged 49 at time of offences - guilty plea - alcohol problem - de facto wife & 2 young children - son suffers from Downs Syndrome - prior good character - excellent prospects of rehabilitation - unlikely to re-offend - no priors.
Protective custody - whether special circumstances.
Appeal dismissed.
126

EZOLD, Daniel James - NSW SC, Barr J, 20.2.2002
Citation: R v Ezold [2002] NSWSC 129
Remarks on Sentence.
Murder.
At the end of an evening during which accused, co-offenders & deceased had consumed a substantial amount of alcohol & taken LSD, they went for a walk along the beach into a secluded place. There they attacked the deceased, the accused striking the first blow by beating the deceased on the head with a bottle. He was then pushed off the top of a culvert & fell about 2 metres onto the bed of a shallow tidal drain. The group punched & kicked him as he lay there. He was then held face down in the water until he drowned. A co-offender was responsible for the act causing death.
Aged 19 - no priors - genuine remorse - evidence of rehabilitation.
Joint criminal enterprise - intent to kill - planned offence - under strong & brutal influence of co-offender.
Sentenced to 16y with NPP of 12y.
127

HAMZY, Bassam - NSW SC, Bell J, 15.3.2002
Citation: R v Hamzy [2002] NSWSC 128
Remarks on Sentence.
Murder; maliciously wound with intent to do GBH; maliciously discharge loaded firearm with intent to do GBH; threaten to use offensive weapon with intent to prevent or hinder lawful apprehension; conspire to murder.
Verdicts of guilty returned on all counts.
The murder involved the deliberate shooting of a young male during an altercation outside a night-club. The other related shooting offences were taken into account at sentence. Whilst in custody, offender entered into an agreement with another to murder a co-offender who had given assistance to police. A meeting between the offender & a 'contract killer'was arranged, however, the 'contract killer'was an undercover officer in the NSW Police Service, who recorded the conversation he ultimately had with the offender.
Aged 19 at time of shooting - disturbed childhood - exposed to criminal activity of father at early age - heavy drug use.
Sentenced to total of 27y 9m with NPP of 21y 9m.
128

STRBIK, Joseph - CCA, 26.3.2002
Studdert J, Smart AJ
Citation: R v Strbik [2002] NSWCCA 101
Sentence appeal.
11 x receive stolen MV; 1 x attempt steal MV; + offences taken into account (13 x receiving; 5 x goods in custody). Total sentence of 7y 2m with NPP of 5y 4m
Applicant was a leading figure in a car rebirthing group specialising in high performance cars, mainly Holdens. Applicant's role was as a mechanic. The offences were committed over some 15 months & the value of property stolen amounted to approx $1.26 million.
Aged just under 27 at time of sentence - normal, although strict, upbringing - certified motor mechanic - regarded as a good worker by his family.
Whether special circumstances - discount for pleas insufficient - whether sentence manifestly excessive.
Appeal dismissed.
129

CORBETT, William George - CCA, 19.4.2002
Handley JA, Sully J, Smart AJ
Citation: R v Corbett [2002] NSWCCA 137
Conviction and sentence appeal.
Counts 1&7: indecent assault.
Counts 2-6: carnal knowledge.
Found guilty on counts 1,5&6, not guilty on counts 2,3,4&7.
Sentenced to FT of 18m on 1st count and concurrent terms of 4y with NPP of 2y on counts 5&6.
The earliest of the charges related to events alleged to have occurred over 30 years before the trial when the complainant was aged 4 years, the last relating to events alleged to have occurred when she was 11 or younger.
Inconsistent verdicts - special circumstances - first time in custody - grave health problems - medical, physical, mental condition - sombre prospects of survival in prison - sentences manifestly excessive.
Conviction appeal on count 1 upheld: conviction & sentence quashed, verdict of acquittal entered.
Conviction appeal on counts 5 & 6 dismissed.
Sentence appeal allowed on counts 5 & 6: resentenced on each count to 3y with NPP of 15m.
130

POULSEN, Peter - CCA, 28.3.2002
Studdert J, Smart AJ
Citation: R v Poulsen [2002] NSWCCA 108
Sentence appeal.
Knowingly take part in supply of prohibited drug (cocaine). 4y with NPP of 2y.
Applicant was sitting in the driver's seat with 2 passengers in his car when police approached the vehicle. They noticed a small water balloon on the floor of the car. A search revealed 30 balloons in a cigarette packet & 4 balloons on the floor, all containing cocaine. Total amount was 6.1 grams with a street value of $2,450.
Aged 20 at time of offence - early guilty plea - supportive family - employed - behaviour problem - remorse - prospects of rehabilitation - no priors.
Special circumstances.
Appeal allowed: resentenced to 3y with NPP of 12m.
131

MYERS, Benjamin Patrick - CCA, 20.3.2002
Dunford J, Carruthers AJ
Citation: R v Meyers [2002] NSWCCA 116
Sentence appeal.
Dangerous drive occasioning death.
4y with NPP of 2y; licence disqualified for 3y.
Appellant was driving, to a significant extent, on the incorrect side of the road, approaching the crest of a hill in a situation where he had no view of approaching traffic. A motorcyclist was riding in the opposite direction on his correct side of the road. Applicant's car collided with the motorcycle, killing the rider.
Aged 19 at time of offence - de facto and child - hard worker - poor driving record - some remorse - good prospects of rehabilitation - prior driving offences - not previously imprisoned.
Whether special circumstances.
Appeal dismissed.
132

TRAN, Quynh Van - CCA, 22.3.2002
Dunford J, Carruthers AJ
Citation: R v Tran [2002] NSWCCA 117
Sentence appeal.
Demand property with intent to steal - FT 2y;
BE&S - deferred sentence upon entry into CSO for 350h. Sentenced upon call-up for breach to FT 6m, concurrent.
No objective facts provided.
Aged 26 at time of offences - early guilty plea - unfortunate start in life - supportive family - drug problems - priors include driving & property offences - previous imprisonment.
Error in declining to fix NPP.
Appeal allowed: resentenced to 2y with NPP of 14m.
133

VALERA, Mark Mala - CCA, 12.4.2002
Meagher JA, Wood CJ at CL, Bell J
Citation: R v Valera [2002] NSWCCA 50
Sentence appeal.
2 x murder.
Life imprisonment.
Appellant brutally murdered 2 men, mutilating the victims' bodies afterwards: see R v Valera [2000] NSWSC 1220.
Aged 19 - no priors.
Whether life imprisonment was the appropriate sentence - two-step approach.
Appeal dismissed.
134

SHARMA, Ravinesh Dutt - CCA, 24.4.2002 - 54 NSWLR 300; 130 A Crim R 238
Spigelman CJ, Mason P, Barr, Bell & McClellan JJ
Citation: R v Sharma [2002] NSWCCA 142
Crown appeal.
Armed robbery in company.
18m with NPP of 12m.
5 judge bench to consider effect of the High Court judgements of Wong and Cameron on Thomson:
Some judgements in Wong criticised 2-stage approach of sentencing - concluded that this did not prevent the practice approved in Thomson of the judge quantifying the discount given for a guilty plea [31].
Cameron criticised the giving of a discount for the objective savings of a guilty plea in terms of state resources - concluded Cameron does not apply in NSW because of the effect of s.22 Crimes (Sentencing Procedure) Act 1999 - s.22 requires the court take into account the fact that a guilty plea was entered and the time that it was entered - this shows that parliament was concerned with the objective as well as the subjective elements of a guilty plea [62].
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 2y with NPP of 18m.
135

CHAPMAN, Louise Jane - CCA, 12.4.2002
Stein JA, Hidden & Howie JJ
Citation: R v Chapman [2002] NSWCCA 105
Conviction appeal.
1 x supply amphetamine on an ongoing basis.
18m with NPP of 8m.
Appellant was found guilty of the above offence & acquitted on a charge of deemed supply methylamphetamine. At the time of appeal, she had already served the whole of her NPP & a little over two-thirds of her head sentence.
Wrongful rejection of evidence going to accused's good character - omission to lead other evidence of good character - whether miscarriage of justice.
Appeal allowed: verdict of judgement of acquittal entered on 2nd count.
136

FRY, Jeffrey Charles - CCA, 8.4.2002
Ipp AJA, Bell J, Smart AJ
Citation: R v Fry [2002] NSWCCA 127
Conviction appeal.
Aggravated indecent assault upon child under 10.
400h CSO.
Appellant alleged to have placed his penis against 5 year old male victim's bottom.
Appellant had been charged with 2 counts of aggravated indecent assault. The jury returned verdicts of guilty on the 1st count & not guilty on the 2nd count. Crown case relied solely on the credibility of the complainant's evidence, which contained a number of discrepancies & inconsistencies. Appellant did not testify.
Aged 30 at time of alleged offences.
Inconsistent verdicts - uncorroborated evidence.
Appeal allowed: verdict of acquittal entered.
137

CORDERO-VIDAL, Juan - CCA, 10.4.2002 - 128 A Crim R 543
Meagher JA, Wood CJ at CL, Bell J
Citation: R v Cordero-Vidal [2002] NSWCCA 36
Conviction and sentence appeal.
Import commercial quantity cocaine.
16y with NPP of 11y.
Appellant & his co-offender arrived at Sydney Airport on a flight from Amsterdam. The appellant's luggage included a metal suitcase which contained 12.862 kgs of 63% pure cocaine concealed in 2 video camera battery belts. Subsequently, appellant & co-offender participated in a controlled delivery.
Aged 36 at time of offence - middleman - assistance to authorities - not worst category of case - no priors.
Fresh evidence - inability to call evidence from co-accused - credibility of counsel - parity.
Conviction appeal dismissed.
Sentence appeal allowed: sentence of 16y confirmed, with a new NPP period of 10y 8m.
138

TAPELE, Balos - CCA, 18.3.2002
Dunford J, Carruthers AJ
Citation: R v Tapele [2002] NSWCCA 111
Sentence appeal.
2 x malicious wounding with intent to do GBH.
Total of 8*y with NPP of 5*y.
The above offences were inflicted upon applicant's estranged wife & his mother-in-law. He asked his mother-in-law, who was caring for his 1 year old daughter at the time, for some money & then struck her a number of times with a hammer, causing her to drop the child. About a month later, applicant approached his estranged wife & asked her for money. She gave him $5. Applicant then stabbed her repeatedly, inflicting 13 wounds.
Aged 29 at time of offences - born and raised in tribal village in PNG highlands - on visitor's visa in Australia - incapable of obtaining employment or unemployment benefits - away from family support - pleas of guilty entered at earliest opportunity - alleged threats made to applicant by other inmates - need for protective custody - offence committed whilst on bail - good prospects of rehabilitation - some contrition - no priors.
Discount - special circumstances - consecutive sentences - totality.
Appeal dismissed.
139

CHAMI, Mahmoud - CCA, 12.4.2002 - 128 A Crim R 428
SHEIKH, Tayyab
Ipp AJA, Sully & Bell JJ
Citation: R v Chami; R v Sheikh [2002] NSWCCA 136
Appeal against interlocutory order refusing separate trials.
Applicants, together with 3 others, were due to stand trial commencing 15.4.2002 on an indictment containing 19 counts. The counts related to several consecutive but separate incidents involving sexual misconduct. Sheikh had been joined in an indictment which contained 19 counts, only 2 of which were in respect of him. None of the evidence relating to the other 17 counts had any bearing in respect of the 2 charges he faced. Chami faced charges relating to a separate incident, not involving the applicant Sheikh.
Whether prejudice will be suffered if trial not separated - principles - prejudice to witnesses having to testify twice.
Chami: Application dismissed.
Sheikh: Application granted. Appeal upheld. Separate trial ordered.
140

MARCHIONE, John - CCA, 12.4.2002 - 128 A Crim R 574
Heydon JA, Dowd & Bell JJ
Citation: R v Marchione [2002] NSWCCA 131
Application pursuant to s.5F(3)(b) Criminal Appeal Act 1912 against an order refusing an application for a permanent stay of proceedings.
Appellant was charged with 2 counts: knowingly take part in manufacture of prohibited drug (methylamphetamine); knowingly take part in supply of prohibited drug (methylamphetamine). An order was sought to permanently stay proceedings on count one. Appellant contended that the evidence available to the Crown was not capable of establishing his guilt of the charge alleged in count one.
Interpretation of ss.6 & 24(1) Drug Misuse and Trafficking Act 1985 - whether decision in R v BD [2001] NSWCCA 184 misapplied - whether error in declining to permanently stay proceedings in respect of count one.
Appeal dismissed.
141

FULLER, Terrence James - CCA, 17.4.2002
Hodgson JA, Greg James & Kirby JJ
Citation: R v Fuller [2002] NSWCCA 121
Conviction appeal.
Counts 1-7: sexual intercourse without consent with person under age of 16;
Count 1A to 7A (in the alternative): unlawful carnal knowledge with person under age of 16.
Offences alleged to have occurred between 1984 & 1987 when complainant was aged between 12 & 15. When giving evidence, complainant did not refer to the incident said to give rise to counts 7 and 7A. A verdict was directed in respect of those counts. The 13 remaining counts went to the jury. Appellant was acquitted on all counts except count 6A. At the time of the trial, there were other charges alleging sexual misconduct pending against appellant. After the trial, no evidence was offered on those other charges & the appellant was acquitted in respect of those charges.
Inconsistent verdicts - whether direction on delay in making complaint adequate - fresh evidence - whether sequence of trials meant accused could not raise character.
Appeal dismissed.
142

COOK, Rodney William - CCA, 24.4.2002
Spigelman CJ, Mason P, Barr, Bell & McClellan JJ
Citation: R v Cook [2002] NSWCCA 140
Sentence appeal.
Drive in manner dangerous causing GBH. Sentenced to 1y 10m with NPP of 12m.
Applicant was driving at 100 kph in a 60 kph zone when his vehicle collided with a car that had reversed out of a parking place beside the road, the impact resulting in that car colliding with another vehicle. The driver of the reversing car suffered severe head injuries, brain damage, ruptured spleen & fractured pelvis. She is now permanently incapacitated & requires assistance & supervision. After the collision, applicant ran away but then went in a distressed state to the police station & told a police officer that he was responsible for the collision. He also told the officer he had been driving at 100 kph at the time.
Aged 21y 8m at time of collision - contrition - 3 prior offences for exceeding speed limit - no prior convictions - good work history - not likely to re-offend.
Whether error in referring to Jurisic - excessive speed - abandonment of responsibility - whether, assuming error in sentencing, any less severe sentence warranted.
Appeal dismissed.
143

HOANG, Van Sinh - CCA, 8.4.2002 - 128 A Crim R 422
Ipp AJA, Bell J, Smart AJ
Citation: R v Hoang [2002] NSWCCA 128
Sentence appeal.
1 x knowingly take part in supply of prohibited drug (350 grams heroin); 1 x knowingly take part in supply of prohibited drug (700 grams heroin). Sentence not stated.
After the Crown closed its case at the sentence hearing, defence counsel tendered a report from a psychiatrist. Defence counsel then closed the applicant's case, noting that he did not propose to call oral evidence. In the course of submissions, there was an exchange between the judge & defence counsel concerning a hearsay assertion contained in the report, wherein the psychiatrist repeated the applicant's account that he expected to receive only a small sum of money, in the order of $500-$600, for his role in the offences. The sentencing judge observed that he had learnt over the years not to believe anything that drug dealers say and that drug dealers are notoriously unreliable and dishonest and that 'they lie, they cheat, they murder.'The CCA found that these remarks might be taken to have conveyed a state of mind that the sentencing judge would not accept the applicant's account by reason of views that he held concerning drug dealers as a class.
Psychiatric report - hearsay - corroboration - bias - impartiality - whether sentence proceedings miscarried.
Appeal allowed: matter remitted to the DC for sentencing by a different judge.
144

GREY, Sharon Lee - CCA, 17.4.2002
Handley JA, Sully J, Smart AJ
Citation: R v Grey [2002] NSWCCA 144
Conviction appeal.
Appellant & her husband stood trial on various charges relating to the criminal handling of motor vehicles. Only 2 charges were directed to appellant. She was acquitted on one charge but found guilty on a charge of disposing of a MV knowing it had been stolen. She received a 3y GBB & was required to submit to the supervision of the Parole Service for 18m. That period of supervision & the bond had expired at the time of the CCA hearing. Appellant's husband was convicted on a number of charges & sentenced to full time custody. His appeal to the CCA was dismissed & he appealed to the HC. The HC allowed his appeal & ordered a new trial. The DPP since indicated that it was not proposed to proceed to retry the husband & that a nolle prosequi had been entered.
Successful appeal by co-accused - no point in ordering new trial for appellant.
Appeal allowed: conviction quashed, verdict of not guilty substituted.
145

COLLISSON, David Leonard - NSW SC, Whealy J, 26.3.2002
Citation: R v Collisson [2002] NSWSC 229
Remarks on Sentence.
Murder.
Offender shot a young male. On the evening of the killing, the deceased & his girlfriend had bought something to eat & drink, then driven to a vantage point in Greenwich where they got out of the car and sat eating while looking at the city lights. The offender & a smaller man approached them. The offender asked the deceased for his wallet, whereupon the deceased said he did not have a wallet. Offender punched the deceased in the face. When the deceased's girlfriend placed herself between the 2 men, the offender hit her on the forearm. Offender then shot the deceased. In all 4-5 shots were fired, 2 of which hit the deceased, one rupturing his aorta.
Sentenced to 24y with NPP of 18y.
146

BROWN, Harold Milton - CCA, 24.4.2002
Simpson & Dowd JJ
Citation: R v Brown [2002] NSWCCA 143
Supplementary judgment.
Sentence appeal.
On 8.12.2000, the CCA heard & determined an application for leave to appeal against sentence (see R v Brown [2000] NSWCCA 548). The order made by the Court left the total term of 4y untouched, but reduced the NPP from 2y to 15m. What was not drawn to the attention of the Court at that time was that, subsequent to the imposition of sentence but before the determination of the appeal, the applicant was sentenced to a further term of 2y 4m with a NPP of 4m which was ordered to commence at the expiration of the original NPP. If the 2nd sentence was not adjusted, that sentence would commence well after the expiration of the NPP imposed by the Court on 8.12.2000.
Appeal allowed: sentence varied to commence at the expiration of the NPP imposed by the Court on 8.12.2000.
147

NOONAN, Jeffrey Paul - CCA, 28.2.2002 - 127 A Crim R 599
Beazley JA, Bell J, Smart AJ
Citation: R v Noonan [2002] NSWCCA 46
Conviction and sentence appeal.
Armed robbery.
21m with NPP of 17m.
The victim was walking down the street when she heard a car approaching from behind. The car stopped, a woman got out of the car & took hold of the victim's bag. The victim struggled with the attacker, but when she noticed the woman was armed with scissors, she let go of the 2 bags she was carrying. The woman took the bags & got back into the car which was being driven by a male who was alleged to have been the appellant. The victim made a note of the registration of the car, which she gave to police. The appellant was stopped by police later that evening.
Retrospective operation of the presumption of continuance - verdict unreasonable & could not be supported by the evidence - not open to jury to be satisfied beyond reasonable doubt as to guilt of appellant.
Appeal allowed: verdict of acquittal entered.
148

NOONAN, Jeffrey Paul - CCA, 1.5.2002
Beazley JA, Bell J, Smart AJ
Citation: R v Noonan [2002] NSWCCA 150
Conviction appeal.
Wound with intent to rob.
Crown case was that appellant & his accomplice forced their way into the victim's house & wounded the victim by hitting him with a replica shotgun & a hammer. Appellant said the gun was not his & that he was at home with his de facto on the night of the offence. During his address, the Crown prosecutor commented on the appellant's failure to call his de facto. The trial judge gave directions on the Crown prosecutor's comment.
Prohibited comment by Crown prosecutor - directions to jury - whether miscarriage of justice.
Appeal dismissed.
149

O'MEARA, Kenneth Ian - CCA, 12.4.2002
Ipp AJA, Sully & Bell JJ
Citation: R v O'Meara [2002] NSWCCA 134
Application for leave to appeal against an order dismissing applicant's Notice of Motion to set aside indictment.
Applicant was charged with 4 Commonwealth offences - s.29D Crimes Act 1914 (Cth). He was arraigned in the DC & claimed that jurisdiction of the DC was unable to be invoked.
Whether DC can determine Commonwealth offences - whether leave to appeal should be granted - whether error by trial judge.
Leave to appeal refused.
150

WALL, Peter Vincent - CCA, 2.4.2002 - 71 NSWLR 692
Meagher JA, Wood CJ at CL, Bell J
Citation: R v Wall [2002] NSWCCA 42
Crown appeal; and
Application to extend time to file appeal against conviction.
3 x make false or misleading statements; 1 x knowingly concerned in making of false & misleading statement.
Jury returned verdict of guilty on 4th count but were unable to reach agreement on verdict for other 3 counts.
2y GBB.
Offence arose as a result of respondent's dealings with the Hastings Municipal Council in respect of a tender for the lease of a theme park. Offender made false & misleading statements.
False & misleading statements - Corporations Law - lease with Council - false assertion of compliance with prerequisite allotment of shares.
Whether sentence manifestly inadequate.
Application for extension of time dismissed.
Crown appeal allowed: resentenced to 300h CSO.
151

ZUREK, Waldemar - CCA, 7.3.2002
Spigelman CJ, Grove & Barr JJ
Citation: R v Zurek [2002] NSWCCA 61
Application seeking extension of time within which to appeal against convictions and sentences.
1 x wound with intent to do GBH - 5*y with NPP of 2*y; 2 x AOABH - 18m FT (concurrent) on each; 1 x assault - 18m FT (concurrent).
Following the death of their mother, applicant & his sister consulted a solicitor about the distribution of the estate. The discussion became heated & applicant took a spear gun out of a bag he had brought with him & pointed it at the solicitor. He then turned & fired it at his sister who was sitting next to him, the spear striking her on the head. A struggle ensued during which applicant's sister, the solicitor & 2 employees of the legal practice tried to subdue the applicant. All suffered injuries.
Psychiatric evidence - psychotic illness - auditory hallucinations - paranoia - on a disability pension - long-standing history of substance abuse.
Sentences already largely served.
Application seeking extension of time refused.
152

GITTANI, Elie - CCA, 19.4.2002
Ipp AJA, Sully & Bell JJ
Citation: R v Gittani [2002] NSWCCA 139
Sentence appeal.
Possess counterfeit money.
2y with NPP of 6m conditional upon entering a GBB for the remainder of the period of sentence.
Applicant was charged with the above offence by reason of having in his possession 91 counterfeit Australian $50 notes which he knew to be counterfeit money.
Whether sentence excessive - whether error in imposing custodial sentence - whether error in failure to wholly suspend custodial sentence - whether error in failure to find hardship - insufficient weight given to good character - remorse - contrition - undue weight placed on general deterrence.
Appeal dismissed.
153

ANDERSON, Michael Colin - CCA, 24.4.2002
Mason P, Dowd & Greg James JJ
Citation: R v Anderson [2002] NSWCCA 141
Conviction appeal.
BE&S in circumstances of aggravation - 12y with NPP of 8y; indecent assault - 3y FT (concurrent).
Crown alleged that appellant broke into the home of an 88 year old female pensioner living alone & there perpetrated the above offences.
Identification - whether trial miscarried due to cross-examination of appellant in relation to his failure to inform police about a person he alleged was the assailant - right to silence - whether appellant ought to have answered questions during course of official questioning - whether prosecutor ought to have implied defence was fabricated because it was raised late - whether directions by judge adequate.
Appeal allowed: new trial ordered.
154

MALOUKIS, William Steven - CCA, 30.4.2002
Hodgson JA, Levine & Simpson JJ
Citation: R v Maloukis [2002] NSWCCA 155
Crown appeal.
1 x robbery; 4 x aggravated robbery (use of corporal violence); + 11 Form 1 offences.
Total of 4y with NPP of 2y.
The Form 1 offences involved aggravated robbery, robbery, steal from the person, goods in custody. All offences on the Form 1, except for the goods in custody offence, involved bag snatching. The violence in the aggravated offences occurred during the taking of the bags from the female victims, some of whom were pulled to the ground & injured. Some of the victims were elderly.
Aged a little under 33 at time of sentence - extensive criminal record dating back to when respondent aged 13 - guilty plea - difficult circumstances of upbringing - remorse - addicted to amphetamines & heroin - anxiety disorder - subjected to physical assault whilst in custody - need for rehabilitation - double jeopardy.
Planned & persistent offences occurring over an extensive period of time - whether sentences inadequate.
Appeal allowed: resentenced to total of 6y with NPP of 3*y.
155

SLATTERY, Carl Rodney - CCA, 1.5.2002
Sheller JA, Grove & Simpson JJ
Citation: R v Slattery [2002] NSWCCA 145
Conviction and sentence appeal.
Knowingly take part in cultivation of cannabis plants.
4y 4m 5d with NPP of 1y 10m 5d.
At trial, it was argued that appellant provided assistance and/or supplies to unknown persons, with the knowledge that such equipment & supplies would be used in the cultivation of cannabis. Crown case was based on evidence given by police officers as to the existence of the crop site, the statements made by the appellant's former de facto partner & circumstantial evidence.
Directions - requisite knowledge - circumstantial evidence - 'reasonable explanation'- consistent with innocence - fabrication of evidence - memory loss.
Appeal dismissed.
156

FARRELL, Jason Edward Gordon - NSW SC, Barr J, 2.5.2002
Citation: R v Farrell [2002] NSWSC 375
Remarks on Sentence.
Murder.
On the night of the killing, accused, co-offenders & deceased had consumed a substantial amount of alcohol & taken LSD, after which they went for a walk along the beach into a secluded place where the accused & co-offenders attacked the deceased. Some dispute as to whether it was the accused or the co-accused Ezold who struck the first blow by beating the deceased on the head with a bottle. The deceased was then pushed off the top of a culvert & fell onto the bed of a shallow tidal drain. He was punched & kicked as he lay there & was then held face down in the water until he drowned. Accused was responsible for the act causing death.
Aged almost 20 at time of killing - unfortunate upbringing - support of an uncle - alcohol & drug problem - undertaken drug & alcohol counselling - prospects of rehabilitation.
Sentenced to 18y with NPP of 13*y.
157

SANKEY, Joseph Michael - CCA, 26.3.2002
Studdert J, Smart AJ
Citation: R v Sankey [2002] NSWCCA 135
Sentence appeal.
Count 1: supply methylamphetamine - FT 4y starting 30.5.2000.
Count 2: supply methylamphetamine + Form 1 offences - 5y with NPP of 18m starting 30.5.2003.
Count 3: supply methylamphetamine - FT 3y starting 30.5.2000.
Count 4: sexual intercourse without consent - 4y FT starting 30.5.2000.
Count 5 - homosexual intercourse - FT 3y starting 30.5.2000.
There were 8 further offences taken into account.
Evidence was that applicant supplied methylamphetamines to males in late teens. He also had anal intercourse with a young male while he was asleep. Some of the offences were committed whilst on bail.
Aged 51 at time of appeal - suffers quite severe brain damage following an assault, substantially affecting his conduct.
Whether insufficient allowance for medical condition.
Appeal against sentence allowed on counts 1 & 4 - resentenced to FT 3*y. Appeal against sentence on counts 3 & 5 dismissed. Appeal against sentence on count 2 allowed in part, commencement date now 30.5.2002.
158

LENEHAN, Donna - CCA, 6.5.2002
Greg James J, Carruthers AJ
Citation: R v Lenehan [2002] NSWCCA 158
Sentence appeal.
1 x supply heroin on an ongoing basis.
3y with NPP of 12m.
Guilty plea at earliest opportunity. Applicant already served NPP.
Applicant was dealt with at the same time as her de facto husband who also pleaded guilty. He was sentenced to 3y 9m with a NPP of 2y 10m. His appeal against that sentence was upheld.
CCA differently constituted found error in sentence for co-offender - error also affects this sentence - culpability wrongly considered to be aggravated by evidence of future intentions - whether sentence excessive.
Appeal allowed: resentenced to 2y 4*m with NPP of 8*m.
159

BUTTON, Shannon Michael - CCA, 9.5.2002 - 54 NSWLR 455
GRIFFEN, William James
Heydon JA, Greg James & Kirby JJ
Citation: R v Button; R v Griffen [2002] NSWCCA 159
Conviction appeals.
Aggravated sexual assault (in company).
Button: 7y with NPP of 4y.
Griffen: 6y with NPP of 3y.
The trial was a joint trial of 5 co-accused on a total of 11 counts. Complainant alleged she was sexually assaulted by the 5 men in a remote area after accepting an offer of motor transport in the early hours of the morning.
Common purpose to sexually assault victim.
Meaning of 'in company'- whether trial judge erred in interpretation of phrase - whether misdirection of jury resulted.
Appeals dismissed.
160

KARIMI, Tarique - CCA, 20.3.2002
Mason P, Hulme & Hidden JJ
Citation: R v Karimi [2002] NSWCCA 72
Conviction appeal.
Import trafficable quantity prohibited drug (heroin).
6y with NPP of 4y.
Appellant arrived at Sydney Airport on a flight from Bangkok. His baggage was searched by Customs officers who found a pair of white cotton tracksuit pants with 118.4 grams of heroin secreted in the fabric. The Customs officer described the pants as being 'discoloured and of a dirty appearance'and said they felt 'sticky and stiff'Appellant was questioned & his answers tendered into evidence after a voir dire hearing. He said he bought the pants in Pakistan & attributed their dirtiness to the pollution in Pakistan. At a subsequent electronically recorded interview, he said the pants had been given to him by a friend. He was then charged & released to bail. Upon his return to the police station later that day to collect his property, a Federal Police officer searched his wallet & found a piece of paper with the words 'Ammonia solution strong'written in English, together with some writing in a foreign language. Scientific evidence was given at trial that strong ammonia solution was used in the process of extracting heroin from fabric.
Error in admitting evidence of admissions - inconsistent evidence - equivocal evidence over existence of video of interview - Weissensteiner (1993) 178 CLR 217 - Azzopardi (2001) 75 ALJR 931 - failure to call evidence of good character - 'unsafe & unsatisfactory'.
Appeal allowed: new trial ordered.
161

SNOWSILL, Christopher - CCA, 6.5.2002
Greg James J, Carruthers AJ
Citation: R v Snowsill [2002] NSWCCA 157
Sentence appeal.
Detain for advantage (kidnap); + 6 Form 1 offences.
4y with NPP of 2y.
Fleeing form police after an unsuccessful attempt to steal a car, applicant entered a car driven by a 72 year old woman. He activated the central locking mechanism then leaned across the driver, attempting to force her to drive off so that he could use her as a hostage & driver for his escape. He shouted at her to get her foot off the brake whilst he manually operated the accelerator. However, the vehicle only travelled about 15 metres, police having encouraged the woman to keep her foot on the brake. The police then gained access to the vehicle, rescued the woman & after some resistance from the applicant, managed to restrain & handcuff him. No injury was caused to the victim.
Whether sentence excessive.
Appeal dismissed.
162

VINCENT, Thomas Anthony - CCA, 2.4.2002
Heydon JA, Studdert & Levine JJ
Citation: R v Vincent [2002] NSWCCA 110
Crown appeal pursuant to s.5F against an order discharging the accused.
Provision conferring jurisdiction to hear appeals from interlocutory orders - whether orders below interlocutory or final - meaning of words 'I discharge the accused'- whether distinction between discharge and acquittal - autrefois acquit.
Appeal dismissed.
163

SOTO-SANCHEZ, Ferney - CCA, 10.5.2002 - 129 A Crim R 279
Stein JA, Sully J, Smart AJ
Citation: v Soto-Sanchez [2002] NSWCCA 160
Conviction and sentence appeal.
Possess commercial quantity prohibited imports (cocaine).
24y with NPP of 18y.
Two men arrived at Sydney Airport on a flight from Amsterdam. Their luggage included a metal suitcase which contained 12.862 kgs of 63% pure cocaine concealed in 2 video camera battery belts. Subsequently, they participated in a controlled delivery in which the appellant was arrested. Crown case was that appellant was the person carrying the bag containing drugs upon leaving the hotel room, whereas the appellant claimed the bag was being carried by one of the other men & that he, the appellant, carried a video camera. He said he was there merely to take the 2 men out to see Sydney and meet other people.
Whether trial miscarried - directions to jury - onus and standard of proof - evidence of good character - direction on character - cross-examination of accused without leave - offensive cross-examination of accused.
Appeal allowed: new trial ordered.
164

TAIPAVALU, Mamu (aka Christian BIRCH) - CCA, 19.4.2002 - 130 A Crim R 513
Stein JA, Sully J, Smart AJ
Citation: R v Taipavalu [2002] NSWCCA 146
s.5F appeal against interlocutory ruling made in connection with the conduct of a trial set to commence on 29.4.2002.
Counts 1 & 2 charged separate but related firearm offences, counts 3 & 4 charged separate but related firearm offences, counts 5 & 6 charged drug-related offences, counts 7 & 8 charged separate but related firearm offences.
An application was made for severance of the counts, the nub of the application being the proposition that there should be 5 separate trials, one each for the 2 drug-related offences & 3 separate trials, one for each group of firearm offences. The primary judge indicated that he was disposed to order the separate trial of the 2 drug-related offences but to try the 3 groups of firearm offences together. At arraignment, applicant pleaded guilty to the 2 drug-related offences & not guilty to each of the remaining offences.
Whether disparate circumstances of each of the 3 groups of firearm offences justify a separate trial for each group.
Leave to appeal refused.
165

MARSH, Stuart Cecil - CCA, 29.4.2002
Meagher JA, Hidden & Bell JJ
Citation: R v Marsh [2002] NSWCCA 151
Crown appeal; and
Sentence appeal.
1 x manslaughter - 10y 4m with NPP of 7y 9m; 1 x robbery in company - 6y FT; 1 x take & drive conveyance - 14m FT. All sentences to run concurrently.
Offender (Marsh) & co-offender planned to snatch a handbag & escape using a stolen MV. Co-offender approached a young woman of 19 as she was standing on the footpath, grabbed her handbag & jumped into the MV. Offender began driving away & the young woman ran alongside the vehicle for a short distance. Offender stopped the vehicle briefly & the woman partially entered it. Offender accelerated, swerving the vehicle from side to side, then drove through a roundabout. The young woman grabbed hold of the co-offender's head to stop herself falling from the vehicle. The offender, still driving, repeatedly punched her to the head until she fell from the vehicle. She rolled onto the road & the vehicle's rear tyre struck her head. She was found unconscious & taken to hospital where she died as a result of her head injuries. Some days later, the co-offender's solicitor contacted police on behalf of the co-offender who wished to surrender himself. Co-offender made full admissions & undertook to give evidence at the trial of the offender.
Guilty plea - 'unfortunate'criminal record, including serious offences.
Crown appeal: Whether trial judge failed to reflect total criminality - whether failure to observe principles in Pearce - whether sentences be served concurrently.
Sentence appeal: Whether sentence manifestly excessive.
Crown appeal dismissed.
Sentence appeal dismissed.
166

IRANI, Walid - CCA, 10.5.2002
Sheller JA, Levine & Simpson JJ
Citation: R v Irani [2002] NSWCCA 153
Sentence appeal.
Murder.
20y with NPP of 15y (received discount of 40%).
Applicant was recruited by an acquaintance on behalf of a woman by the name of Suteski to assault & injure one of her superiors in her place of employment. Suteski had, over previous months, defrauded the company where they both worked of $290,000. She was going to leave that company & planned to execute further major frauds but feared her superior would detect them, therefore she wanted him disabled for a period of 2 or 3 weeks. Applicant attacked the deceased outside deceased's residence, hitting him on the head with a hammer. Although stunned, deceased struggled with applicant, whereupon applicant stabbed him 6 times with a knife, one of the wounds perforating the deceased's left lung & aorta.
Aged just under 20 at time of murder - born in Lebanon, migrated to Australia with family at age 11 - substance abuse/dependency - no recognised psychiatric illness - early behavioural disturbances representing antisocial traits - narcissistic, self-defeating - lack of regard for others, anxiety, dysthymia - hypervigilance - prior criminal record of little significance - given evidence for the Crown in Suteski's trial.
Failure to give sufficient weight to contrition, assistance, guilty plea, the fact applicant did not intend to kill, drug addiction, youth - whether sentence unduly excessive.
Appeal dismissed.
167

EL-ZEYAT, Naseam - CCA, 3.5.2002 - 54 NSWLR 319
Wood CJ at CL, Sully & Dowd JJ
Citation: R v El-Zeyat [2002] NSWCCA 138
Conviction appeal.
Tamper and assist with disposal of vehicle with intent to hinder discovery of evidence concerning a serious indictable offence.
The alleged offence occurred following a shooting that resulted in the death of 2 men. After the shots were fired, the vehicle was driven away & taken to an address where degreaser was sprayed on the inside & outside surfaces of the vehicle to remove any sign of fingerprints & saliva. The car was later found by police in the driveway of a property. Appellant was accused of being involved with both the degreasing of the vehicle & the subsequent disposal of it, although he denied any involvement.
Whether specific or general knowledge of offence required - statutory interpretation.
Appeal allowed: verdict of acquittal entered.
168

MICHAEL, Nathan Isaad - CCA, 1.5.2002
Meagher JA, Bell & McClellan JJ
Citation: R v Michael [2002] NSWCCA 154
Sentence appeal.
Murder.
21y with NPP of 16y.
The above sentence was imposed following a successful s.13A determination against a life sentence. Applicant's co-offender was successful in his appeal against the re-determination of his life sentence & received 21y with a NPP of 16y, resulting in both applicant & co-offender serving sentences of identical length. Co-offender's only successful ground in his appeal related to serving his sentence on protection.
Both offenders, at age 18, met a young female outside a night club & drove her to a deserted area. They put her out of the car when she refused to have sex with applicant. Co-offender punched her & asked applicant to hand him a baseball bat. Co-offender used the bat to strike the victim across the back of the head, then removed her jeans & boots with applicant's assistance. They then drove away with some of the victim's clothes. A short time later they returned, fearing the victim might have been able to identify their vehicle. They picked her up & drove her to a deserted area near Flat Rock Creek Dam. While she was still alive, they dragged her to the edge of the dam & pushed her over an observation deck. She sustained gross head & brain injuries & a broken neck & died almost immediately.
Parity - circumstances of involvement in offence - gave evidence against co-offender - justifiable sense of grievance.
Appeal allowed: resentenced to 18*y with NPP of 14y.
169

MORTADA, Khoder - CCA, 25.3.2002
Levine & Carruthers AJ
Citation: R v Mortada [2002] NSWCCA 152
Sentence appeal.
1 x steal from the person; 1 x robbery in company; + Form 1 offence (goods in custody).
Total of 4*y with NPP of 2*y.
Applicant approached victim outside a bar, threatened him, then took his wallet containing $170.
When later apprehended by police, applicant was found to be in possession of a credit card in another person's name (Form 1 offence).
Whilst on bail, applicant picked up another victim & a co-offender then drove to a park, where applicant & co-offender punched & kicked the victim & stole his gold bracelet, gold chain & $400. When police later stopped applicant's car, they found the victim's mobile phone, $400 & the gold bracelet.
Aged 19 at time of offence - guilty plea at earliest opportunity - assistance - rehabilitation - priors - not previously imprisoned.
Discount - consecutive sentences - special circumstances - Henry distinguished.
Appeal allowed: resentenced to total of 4y with NPP of 2y 3m.
170

MYERS, Christopher David - CCA, 7.5.2002
Kirby J, Smart AJ
Citation: R v Myers [2002] NSWCCA 162
Sentence appeal.
11 x sexual offences involving under age males (aggravated indecent assault, act of gross indecency, sexual intercourse, indecent assault, position of authority).
Total of 8y with NPP of 5y.
Four of the victims were brothers, the 5th victim was a friend of the youngest brother. The ages of the victims at the time of each offence varied between 11 & 18 years. Applicant formed a relationship with the mother of the 4 brothers & moved in with the family.
Failure to give sufficient weight to attempts at rehabilitation prior to sentence - failure to give sufficient discount for guilty plea - sentence manifestly excessive - principles in Pearce.
Appeal dismissed.
171

VAN, Narong - CCA, 3.5.2002 - 129 A Crim R 229
Hodgson JA, Greg James & Kirby JJ
Citation: R v Van [2002] NSWCCA 148
Conviction and sentence appeal (application seeking extension of time).
Supply trafficable quantity heroin; supply heroin; + Form 1 offence (goods in custody).
Total of 4*y with NPP of 3y.
Applicant assisted a co-offender who supplied 111 grams of heroin to an undercover police officer.
Police searched applicant's premises following his arrested & whilst there they observed him kick a shoebox behind the bedroom door. In the box were 3 bags containing a total of 164.9 grams of heroin. They also found $9,000 in cash on a shelf in applicant's bedroom, as well as scales, plastic bags & other drug paraphernalia.
Aged 21 at time of offence - guilty plea - on parole and bond at time of offence - priors include car stealing, possess prohibited drug, armed robbery - previous imprisonment.
Claimed misunderstanding of charge - whether plea of guilty to supply heroin induced by misapprehension that Crown only intended to proceed with count of supply not less than trafficable quantity - error in applying principle of parity - whether sentence excessive.
Appeal dismissed.
172

POPE, Karen Diana - NSW SC, Greg James J, 7.5.2002
Citation: R v Pope [2002] NSWSC 397
Remarks on Sentence.
Infanticide.
Offender drowned her 12 week old baby daughter in the baby's bath. Despite conscientious investigation, the circumstances of the offence have not been able to be precisely detailed because of the mental condition of the offender.
Guilty plea - prior history of severe mental illness - post-natal depression and psychosis - limited culpability - extensive post-offence psychiatric treatment - further supervision by Department of Community Services - protection of community.
Sentenced to 3y GBB.
173

INSTITORIS, Robert - CCA, 15.2.2002 - 129 A Crim R 458
Mason P, Levine & Howie JJ
Citation: R v Institoris [2002] NSWCCA 8
Crown appeal; and
Sentence appeal.
6 x sell counterfeit currency; 3 x dispose of counterfeit currency; 1 x knowingly concerned in buying implement to make counterfeit money; 2 x knowingly concerned in making counterfeit money.
Total of 6y with NPP of 4*y.
Offences involved 2 separate counterfeiting schemes - one for $100 notes of the old paper style & the other for $50 notes of the current polymer type. There were 4 other offenders in subsidiary roles. Respondent was pivotal in each case to the successful implementation of the schemes.
Sentence appeal dismissed.
Delays - used illness to frustrate criminal justice system - gravity of offence - general deterrence - no settled range of sentences - inadequacy of sentences.
Crown appeal allowed on one of the counts involving being knowingly concerned in the making of counterfeit $50 notes: resentenced to 5y cumulative.
A NPP of 5*y was set.
174

GHISOLFI, Lee - CCA, 9.5.2002
Kirby J, Smart AJ
Citation: R v Ghisolfi [2002] NSWCCA 166
Sentence appeal.
2 x armed robbery (knife); + Form 1 offences (2 further charges of armed rob with a knife).
Total of 12y with NPP of 9y.
All offences took place within a month after applicant had been released to parole. Three offences were perpetrated upon hairdressing salons, the other upon a kiosk at the St George Hospital.
Aged almost 40 at time of offences - born in Italy, arrived in Australia at age 9 - repeat offender - long criminal history starting at age 13 - periodically addicted to heroin - remained drug free whilst in gaol, quickly returned to drugs upon release - need for rehabilitation - diabetic requiring daily insulin injections.
Objective seriousness - aggravating features - whether sentence manifestly excessive.
Appeal dismissed.
175

ELIJAH-JACK, Jason - CCA, 16.5.2002
O'KeefeJ, Smart AJ
Citation: R v Elijah-Jack [2002] NSWCCA 177
Sentence appeal.
AOABH.
1*y with NPP of 6m.
Applicant & complainant were living in a de facto relationship. They had both consumed a quantity of alcohol on the day of the offence. Applicant punched the complainant to the head & body, dragged her by the hair from one room to another, then back to the bedroom, pushed her onto the bed & hit her again. He dragged her from the bedroom to the kitchen where he placed some ice cubes in a tea towel & gave them to her to apply to her head. He then dragged her by the hair back into the bedroom where he again hit her.
Good character - failure to give adequate weight - effects of alcohol/psychological disorders - contrition.
Appeal allowed: resentenced to 1y with NPP of 3m.
176

WALKER, Michael John - CCA, 15.5.2002
O'Keefe J, Smart AJ
Citation: R v Walker [2002] NSWCCA 178
Sentence appeal.
Armed robbery.
6y with NPP of 3*y.
Applicant approached a schoolboy sitting at a bus stop with his girlfriend, pointed a replica pistol at the boy's chest & began searching through his schoolbag. He took a mobile phone from the bag & fled. An off-duty police officer witnessed the offence & called for assistance. Applicant was located at a nearby shop & arrested. The replica pistol was found on him, however, the mobile phone was not recovered.
Aged 32 at time of offence - affected by drugs - reasonably extensive criminal record, including assault, dishonesty, robbery with actual violence, steal from the person, robbery - on parole at time of offence.
Whether sentence manifestly excessive.
Appeal dismissed.
177

O'CONNOR, Patrick Joseph - CCA, 7.5.2002 - 129 A Crim R 505
Handley JA, Sully J, Smart AJ
Citation: R v O'Connor [2002] NSWCCA 156
Crown appeal.
2 x defraud Commonwealth - 3y with NPP of 18m.
2 x possess false instruments - 2y with NPP of 18m (concurrent).
Respondent was involved in an income tax withholding scheme within the building industry known as prescribed payments. Under the scheme, 20% of moneys paid to the supplier of goods & services would be withheld & remitted to the ATO. Respondent carried out an operation whereby he fraudulently obtained variation certificates reducing the rate of payment to zero, thereby relieving the building company of its obligation to deduct any tax. Respondent would then deposit the cheque received from the building company, withdraw the proceeds then pass the money on to the building company or its employees. He retained 7% as a commission fee. Total amount of commission received by respondent was over $468,000. The loss to the ATO was $1.5 million.
Aged 25 at time of offence - highly educated - no priors.
Whether sentence manifestly inadequate.
Appeal dismissed.
178

QUACH, Trung - CCA, 15.5.2002
O'Keefe J, Smart AJ
Citation: R v Quach [2002] NSWCCA 173
Sentence appeal.
1 x GBH with intent to murder.
9y with NPP of 5y.
Applicant assaulted his wife, striking her several times to the head with a bottle. During the assault, he told her he was going to kill her. The victim lost a lot of blood & sustained a fractured skull & other injuries. Applicant suspected his wife of having an extra-marital affair, which was totally unfounded.
Aged 44 at time of sentence - Vietnamese - well educated - intelligent - good employment history.
Error in sentencing - character disregarded as mitigating factor - contrition - depressive illness - whether sentence imposed excessive.
Appeal dismissed.
179

ENGLISH-RUSSELL, Melanie - CCA, 10.5.2002
Sheller JA, Levine & Simpson JJ
Citation: R v English-Russell [2002] NSWCCA 179
Sentence appeal.
1 x knowingly concerned in importation of trafficable quantity MDMA (ecstasy) - 5y 7m 13d with NPP of 2y 7m 13d;
1 x supply large commercial quantity MDMA - 9y with NPP of 5y.
The sentence for the 1st offence was made partially cumulative upon the sentence for the 2nd offence.
Applicant & her co-offender were part of a group which included at least 6 others who were engaged, at one level or another, in the importation & distribution of ecstasy.
Aged 30 at time of offences - addicted to drugs at the time - dysfunctional lifestyle - separated - former husband has custody of their 2 daughters - progress towards rehabilitation - remorse, contrition.
Whether specific error in sentencing process - factual matters - whether sentences manifestly excessive.
Appeal dismissed.
180

DUNCAN, Alfred Charles - CCA, 8.5.2002
Greg James J, Carruthers AJ
Citation: R v Duncan [2002] NSWCCA 164
Sentence appeal.
Aggravated BE&S (in company, offensive weapon).
3y 4m with NPP of 18m.
Applicant & co-offender armed themselves each with a piece of wood with protruding nails then went to a house & kicked in the front door. They were abusive towards the occupants, threatening to strike them with the pieces of wood. They demanded bongs & money. One of the offenders took $50 from a wallet.
Aged 18 at time of offence - guilty plea - disadvantaged background - dysfunctional family - barely able to read and write - serious alcohol problem - on bail at time of offence - lengthy juvenile record - not previously imprisoned but subject to control order.
Parity - commencement date - pre-trial custody - sentence should have been backdated.
Appeal allowed: sentence backdated.
181

STEWART, Reginald - CCA, 8.5.2002
Greg James J, Carruthers AJ
Citation: R v Stewart [2002] NSWCCA 165
Sentence appeal.
Knowingly take part in supply of prohibited drug (methylamphetamine).
3y with NPP of 2y.
Applicant provided 155 grams of methylamphetamine to a known dealer, who then sold the drugs to an undercover police officer. Conversations had taken place between the applicant & the dealer regarding a car & tyres. It was the Crown case that these conversations consisted of coded references to drug transactions.
Aged 45 at time of offence - priors include assault, MV offences, supply false information, receiving, stealing, smoke Indian hemp - no previous imprisonment.
Character - whether sentence manifestly excessive.
Appeal dismissed.
182

THOMPSON, John Samuel - CCA, 16.5.2002 - 130 A Crim R 24
Ipp AJA, Sully & Bell JJ
Citation: R v Thompson [2002] NSWCCA 149
Conviction and sentence appeal.
40 x impose upon Commonwealth by untrue representation.
Acquitted on 4 charges, found guilty on remaining 36.
Sentenced to total of 3y 9m with NPP of 2*y; + reparation order of $20,190.
Appellant was a Centrelink employee. He used his computer logon to fraudulently issue EBT cards to certain pensioners who were unaware that this had occurred. Appellant then used the EBT cards at various ATM's to withdraw money. Total amount of money involved was $20,190.
Whether trial conducted according to law - whether repeated interventions by trial judge caused trial to become inquisitorial - whether by reason of the judge's interventions appellant was denied a fair trial leading to a miscarriage of justice - principles.
Appeal dismissed.
183

ADLER, George - CCA, 20.5.2002
Spigelman CJ, Barr & Bergin JJ
Citation: R v Adler [2002] NSWCCA 180
Conviction and sentence appeal.
11 x dishonestly obtain by deception.
4y with NPP of 3y on each count (concurrent with each other, but cumulative upon sentence already being served).
The amount obtained by deception totalled $69,380. An essential element of the offences charged was an alleged representation that the money was for an investment in shares. The trial judge directed the jury to entirely dismiss from their minds any thoughts of the money changing hands as a result of a loan.
Whether the jury should have been able to consider a loan as a possible rational alternative hypothesis.
Appeal allowed: new trial ordered.
184

HADDAD, Marwan - CCA, 7.5.2002
Kirby J, Smart AJ
Citation: R v Haddad [2002] NSWCCA 176
Sentence appeal.
Count 1: Use offensive weapon to cause GBH - 8y with NPP of 5y.
Counts 2 & 3: Use offensive weapon to cause GBH - concurrent sentences of 4y FT on each.
All offences arose out of applicant's use of a motor vehicle when he lost control of himself & injured 3 people by deliberately driving his vehicle along a footpath, directly at the victims.
Error as to what is capable of mitigating criminality - effect of provocation - previous good character - strong subjective features.
Appeal dismissed on counts 2 & 3.
Appeal allowed in part on count 1: NPP reduced to 4y.
185

RYALL, Richard John - CCA, 7.5.2002
Kirby J, Smart AJ
Citation: R v Ryall [2002] NSWCCA 168
Sentence appeal.
Malicious wounding - 2y with NPP of 15m; detain for advantage - 5y with NPP of 3y.
The above sentences were partly cumulative, resulting in a total sentence of 6y with a NPP of 4y.
Victim borrowed applicant's car then drove it to see his children. He was accompanied by another person. The other person took the car from the victim. Victim returned to applicant's premises without the car, whereupon applicant's co-offender assaulted him a number of times. Applicant then repeatedly kicked & punched victim to the head area & stabbed him through his earlobe, causing serious injury. Approx a month later, applicant recruited 4 co-offenders. They assaulted & forcibly drove a man who they believed had raped a young lady to applicant's premises & detained him in applicant's garage. They stripped him of his clothing, tied his hands & feet with rope. Applicant & others seriously assaulted him a number of times to the head & body. A concrete block was tied to victim's penis & dropped so it did not touch the ground. Victim eventually managed to escape.
Aged 51 at offence - guilty plea - strong Crown case - chronic post-traumatic stress disorder - recovering alcoholic - eye tumour - character evidence - Vietnam veteran - remorse - priors - no previous imprisonment.
Accumulation of sentences - proportionality of sentences with those of co-offenders - applicant's dominant role & greater criminality justifying a much heavier sentence.
Appeal dismissed.
186

GUIU, Carmen Rusinol - CCA, 21.5.2002 - 129 A Crim R 387
Hodgson JA, Barr & Greg James JJ
Citation: R v Guiu [2002] NSWCCA 181
Sentence appeal.
Attempt obtain possession of commercial quantity ecstasy.
8y with NPP of 5y 3m.
Following her entry into Australia, a woman's suitcase was inspected at the airport & found to contain a sound mixer wherein 10,000 ecstasy tablets were concealed. The woman admitted her role in the importation & agreed to assist in a controlled delivery. She received a 50% discount for her assistance & was sentenced to 3*y with NPP of 2y.
Applicant's husband was convicted following his plea of guilty of being knowingly concerned in the importation of ecstasy & was sentenced to 8*y with a NPP of 5y. The sentencing judge described his role as that of a trusted middle man in the enterprise, and the applicant's role as being that of an intermediary.
Respective roles - necessity for sentence to relate to offence charged rather than more culpable offence - necessity for proper finding and evidentiary support to define more culpable role - parity - De Simoni and Olbrich considered.
Appeal allowed: resentenced to 6y with NPP of 3y 9m.
187

CLISSOLD, Ian Raymond - NSW SC, Greg James J, 17.5.2002
Citation: R v Clissold [2002] NSWSC 429
Remarks on Sentence.
Count 1: manslaughter (alternative to murder); Count 2: AOABH.
The plea to manslaughter was entered on the basis that the offender was an accessory before the fact to an unlawful & dangerous act occasioning death. The plea in respect of the assault was entered upon the basis that the offender was party to an attack & abduction upon the deceased, on the orders of the Supreme Commander of the Commancheros, in order to give him a flogging, which was to be supervised by the offender who was the Sergeant at Arms.
Plea at earliest opportunity - liability as accessory before the fact to unlawful and dangerous act - not present when gravity of co-offenders' assault exceeded expectations - contrition - most serious case.
Sentence: Count 2 - FT 4y. Count 1 - 14y with NPP of 8y (partly cumulative). Effective overall sentence of 16y with NPP of 10y.
188

SOUTHON, Anthony John - NSW SC, Kirby J, 27.3.2002
Citation: R v Southon [2002] NSWSC 255
Remarks on Sentence.
Murder.
Whilst in hospital, offender attacked and killed another patient.
Defence of mental illness - delusional - psychotic - disinhibited.
Not guilty by reason of mental illness.
189

W - CCA, 24.5.2002 - 129 A Crim R 400
Sheller JA, Levine & Simpson JJ
Citation: R v W [2002] NSWCCA 192
Sentence appeal.
Knowingly involved in the importation of a trafficable quantity of methylamphetamine.
7y with NPP of 5y 3m.
The sentence imposed had been reduced by 50% by reason of applicant's timely plea of guilty & accurate information given to authorities which was relevant to the prosecution of other offenders. The sentencing judge stated that 25% of the discount was specifically attributable to the assistance given, half for that already given & half for future assistance.
The drugs were contained in 2 shipping containers that arrived in Australia from China. Concealed within the containers were 82 boxes of methylamphetamine, containing a pure weight of 66.332 kgs, with an estimated street value of $24 million.
Discount inadequate - ratio not justified.
Appeal allowed: resentenced to 7y with NPP of 4y 7m.
190

NGUYEN, Van Nam - CCA, 16.5.2002
Stein JA, Bergin J, Carruthers AJ
Citation: R v Nguyen [2002] NSWCCA 183
Crown appeal.
Supply commercial quantity heroin; + Form 1 offence (knowingly take part in supply of commercial quantity heroin).
Total of 5*y with NPP of 2*y.
The NCA & the Queensland Police Service conducted a joint investigation into the sale & distribution of heroin from Sydney to the Gold Coast. The investigation involved physical surveillance, electronic surveillance & telephone intercepts. Evidence gained from the telephone intercepts assisted in identifying the respondent as the Sydney heroin supplier.
Criminality - totality - objective seriousness - whether respondent's criminal antecedents disregarded - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 8y with NPP of 5y.
191

FISHER, Sondra Ann - CCA, 14.5.2002 - 54 NSWLR 467
Stein JA, Kirby J, Carruthers AJ
Citation: R v Fisher [2002] NSWCCA 188
Conviction and sentence appeal.
Common assault; 5 x BE&S; 2 x AOABH; 1 x escape from lawful custody; + 6 matters on two Form 1 documents.
Total of 6y with NPP of 3y.
Details of offences not given.
Guilty plea - whether common assault an indictable offence - s.8 Criminal Procedure Act - whether DC has jurisdiction to deal with charge of common assault - statutory construction and interpretation - parity - whether manifestly excessive.
Appeal dismissed.
192

CHANNELL, Alan Douglas - CCA, 14.5.2002
Stein JA, Kirby J, Carruthers AJ
Citation: R v Channell [2002] NSWCCA 187
Conviction appeal.
1 x indecent assault of male person (s.81 Crimes Act 1900, since repealed) - 12m FT.
Appellant originally stood trial on 4 counts. The judge directed a verdict of not guilty in relation to one count. The jury found the appellant guilty on one count & not guilty on the 2 remaining counts.
The offences were alleged to have been committed some 20 years prior to trial. Appellant gave evidence denying each of the offences. Because there was only minimal evidence available to support the evidence of the complainant, the case went to the jury as one of 'word against word'.
Absence of appropriate directions - application of Jones v The Queen (1997) 191 CLR 439.
Appeal allowed: verdict of acquittal entered.
193

RYAN, Lana Louise - CCA, 8.5.2002
Greg James J, Carruthers AJ
Citation: R v Ryan [2002] NSWCCA 171
Sentence appeal.
1 x armed robbery (with offensive weapon - a knife).
5y with NPP of 3y 9m.
Applicant & co offender (her de facto husband) went into a shop. The co-offender produced a knife, threatened the victim & told her to open the till. The victim opened the till & the co-offender took approx $100 in notes & coins.
Aged 25 at time of offence - Aboriginal descent - guilty plea - dysfunctional family life - drug addiction - lengthy criminal record (80 prior offences, some involved use of violence) - previously imprisoned.
Insufficient allowance made for subjective circumstances associated with applicant's Aboriginality.
Appeal allowed: resentenced to 4y with NPP of 2*y.
194

JURICIC, Rick - CCA, 8.5.2002
Greg James J, Carruthers AJ
Citation: R v Juricic [2002] NSWCCA 170
Sentence appeal.
4 x BE&S; + a Form 1 offence (possess prohibited drug).
Total of 3y with NPP of 2y 3m.
The offences involved applicant breaking into a hotel, a house, the office of a motel & the office of a caravan park. Cash & goods were taken.
Aged almost 30 at time of sentence - born of Croatian parents, brought up by foster parents - erratic life as a result of tensions with foster parents & natural mother - history of alcohol & drug addiction - gambling addiction - history of regular employment on deep sea fishing trawler - guilty plea - prior criminal record (some serious offences) - previous imprisonment.
Whether sentence excessive.
Appeal dismissed.
195

LAM, Sik - CCA, 22.5.2002
Ipp AJA, Dunford J, Burchett AJ
Citation: R v Lam [2002] NSWCCA 190
Crown appeal.
Possess commercial quantity prohibited import (1.723 kgs heroin); + 2 offences in breach of s.82(1) Proceeds of Crime Act 1987 taken into account.
10y with NPP of 7*y.
Respondent arrested as a result of police surveillance. Respondent supplied a co-accused with the heroin. Transactions involved a series of clandestine arrangements & several telephone calls using code words.
Guilty plea - principal in enterprise - highest in hierarchy of those involved in particular transactions - responsible for organised movement of drugs around Sydney - involved son in criminal transaction, as well as others - moderate assistance to authorities - prior conviction for similar offence, as well as firearm offences - previous imprisonment.
Whether judge erred in exercise of sentencing discretion - whether sentence manifestly inadequate - whether appellate intervention justified.
Appeal dismissed.
196

BELL, Michael Robert - CCA, 21.5.2002
Smart AJ
Citation: R v Bell [2002] NSWCCA 195
Appeal against final sentences imposed in the Drug Court.
Multiple offences: BE&S; receiving; drive in manner dangerous to public; possess housebreaking implements; possess prohibited weapon; drive whilst unlicensed; drive whilst disqualified; assault officer.
Overall sentence of 22m with NPP of 13m.
Appellant breached conditions of program. Crown applied to Drug Court to take action & terminate program. Crown pointed out appellant had committed additional offences since entering into the program & that this was a matter of aggravation. After reviewing appellant's performance, his breaches of the conditions & his inability to keep off drugs & noting he had effectively abandoned his program, the judge concluded there was no useful purpose to be served in continuing on the program.
Whether sentences excessive.
Appeal allowed to extent of adding a direction that appellant be released on supervised parole at the expiration of his NPP.
197

TRAN, Thuc Ngoc - NSW SC, Sully J, 3.5.2002
Citation: R v Tran [2002] NSWSC 394
Remarks on Sentence.
Murder; unlawful imprisonment.
Gang killing - four shots to body.
Offender was a member of a gang trafficking in heroin. The murder charge arose following the death of the 1st victim after the offender shot him 4 times in an 'execution'type killing. A 2nd victim was falsely imprisoned.
Vietnamese national - gang member - heroin trafficking.
Sentenced to total of 14y with NPP of 9y.
198

PHILIPS, Stephen John - CCA, 6.5.2002
SIMPSON, Danielle
Greg James J, Carruthers AJ
Citation: R v Phillips; R v Simpson [2002] NSWCCA 167
Sentence appeal.
Armed robbery (offensive weapon).
Phillips: 6y with NPP of 3y (special circumstances).
Simpson: 4y with NPP of 2y (special circumstances).
Applicants hailed a taxi, then directed the driver to a cul-de-sac. Philips produced a knife & demanded money from the driver, who handed $200 to Simpson. Simpson then reached over & stole a number of items from the driver's shirt pockets, including a Mastercard Keycard & driver's licence, while Philips held a knife at the driver's throat.
Error in not quantifying discount for plea of guilty - did not specifically backdate sentence for pre-sentence custody - desirability of quantifying discount for plea & backdating for pre-sentence custody emphasised - R v Howard [2001] NSWCCA 309.
Philips: appeal dismissed.
Simpson: appeal allowed - resentenced to 4y with NPP of 2y
199

HANSLOW, James Anthony - CCA, 7.5.2002
Kirby J, Smart AJ
Citation: R v Hanslow [2002] NSWCCA 161
Sentence appeal; application for extension of time.
Assault with intent to have sexual intercourse - FT 2*y PD; act of indecency - FT 9m PD.
Offences alleged to have occurred when victim was aged 9 years & applicant aged 16. During a game, the applicant danced with the victim, rubbed the outside of her clothing near her breasts & kissed her. He took the victim to a bedroom, removed his shorts & the victim's underwear, then tried unsuccessfully to have sexual intercourse with her.
If mater had been dealt with promptly, applicant would have had the benefit of being dealt with in Children's Court - priors include driving offences, assault - not previously imprisoned.
Failure to fix MT and AT - failure to give reasons for not fixing MT - whether sentence excessive.
Appeal allowed: resentenced to total 11m 24d FT.
200

JOHNS, Colin John - CCA, 15.5.2002
O'Keefe J, Smart AJ
Citation: R v Johns [2002] NSWCCA 185
Sentence appeal.
Indictment 1: steal MV; BE&S; possess car breaking implements; maliciously damage police electronic recording machine.
Indictment 2: AOABH; use offensive weapon to hinder lawful detention; maliciously damage property; maliciously damage fittings in dock area at Bankstown Police Station; resist police; assault justice; use offensive weapon with intent to hinder lawful detention; maliciously wound senior constable; assault court assistant; assault magistrate; assault constable with intent to prevent lawful apprehension.
There were 18 offences on a Form 1 taken into account.
Total of 9y with NPP of 6y.
Aged 20 at time of offences - disadvantaged upbringing - drug problem, starting at age 11 - history of prior offences going back to when aged just under 16 - previous imprisonment - on parole at time of offences.
Criminality - subjective features - youth - remorse - rehabilitation - totality.
Cumulative sentences - totality.
Appeal allowed: resentenced to total of 9y with NPP of 5y.
201

TOMICH, Heather Leigh - CCA, 13.5.2002 - 127 A Crim R 234
O'Keefe J, Smart AJ
Citation: R v Tomich [2002] NSWCCA 175
Sentence appeal.
Multiple financial fraud charges (larceny as a clerk; insert false information; alter data stored in a computer; make false instrument; + 99 offences on a Form 1).
Total of 5y with NPP of 4y.
On numerous occasions, the appellant (a bank employee) accessed customers' accounts through the bank's computer system & stole money by recording bogus withdrawals. She took steps to prevent detection by falsifying & altering details on the computer system which included changing customers' addresses to her own address, thus preventing the customers from receiving bank statements & information that might have alerted them to the loss of their money.
Aged 39 at time of 1st offence - early guilty plea - remorse - gambling addiction - depression - no priors.
Sentencing - global sentencing impermissible - misdescription of offences - need for careful adherence to provisions of Crimes (Sentencing Procedures) Act 1999 when dealing with Form 1 offences - need for deterrent sentences when dealing with financial frauds on an employer and breaches of trust - compelling subjective features.
Appeal allowed: resentenced to total of 4y with NPP of 2y.
202

Y - CCA, 16.5.2002
Stein JA, Bergin J, Carruthers AJ
Citation: R v Y [2002] NSWCCA 191
Crown appeal.
Dangerous drive occasioning death - 2y suspended sentence; dangerous drive occasioning GBH - 18m suspended sentence (concurrent).
Respondent was a schoolboy & was driving home late at night on his way home from part-time work when he tried to overtake a truck. He crossed double unbroken lines then, travelling wholly on the wrong side of the road, collided with an oncoming car. The passenger of the other car suffered fatal injuries & the driver suffered serious injuries. The respondent suffered facial injuries. The driver of the other car & the respondent require ongoing medical treatment.
Aged 17y 3m at time of offences - guilty plea - holder of provisional driver's licence for 6 weeks at time of accident - error of judgement due to inexperience.
Whether erroneous assessment of objective seriousness of offences - whether suspended sentence correctly imposed - abandonment of responsibility - weight to be given to subjective circumstances - discretion - delay in serving Notice of Appeal - double jeopardy.
Whether sentence inadequate.
Appeal dismissed.
203

COLEAS, Arthur Peter - CCA, 23.5.2002
Dowd J, Smart AJ
Citation: R v Coleas [2002] NSWCCA 204
Sentence appeal.
Conspiracy to steal.
16m with NPP of 9m.
The driver of a truck with a semi-trailer, loaded with computers, mobile telephones & other electronic equipment valued at about $400,000, falsely claimed he had been directed to a rest area & had been held up & all his cargo stolen. The cargo was offloaded into a pantechnicon. Two pantechnicons had been hired, but only one was used. Appellant was a relatively minor player in the conspiracy, having been recruited at a late stage & given a bare outline of what was to transpire.
Greek origin - mild learning disability - below average IQ - reading age of 9y 5m - married - good father & husband - a son has serious health problems - appellant ostracised by parents for not marrying a Greek woman - hardworking - testimonials as to good character impressive.
Special circumstances - failure to allow for assistance to authorities.
Appeal allowed: resentenced to 13m with NPP of 6m.
204

SUTESKI, Sneza - NSW SC, Kirby J, 28.5.2002 - 129 A Crim R 559
Citation: R v Suteski [No.6] [2002] NSWSC 457
Remarks on Sentence.
1 x murder; 9 x obtain financial benefit by deception.
Accused arranged to have one of her superiors in her place of employment assaulted & injured. Accused had, over previous months, defrauded the company of some $290,000. She was going to leave that company & planned to execute further major frauds but feared her superior would detect them, therefore she wanted him disabled for a period of 2 or 3 weeks. However, the attack upon the victim culminated in the attacker stabbing the victim 6 times, resulting in his death. (See R v Irani [2002] NSWCCA 153.)
Aged almost 24 at time of sentence - Australian born of Macedonian parents - completed HSC & accountancy diploma - drug problem - gambling problem - previous similar fraud offences, although not prosecuted as father repaid all monies stolen.
Procuring assault - alternative bases for murder - contract killing/assault - parity where other offenders already sentenced.
Sentenced to total of 24y (less 36d) with NPP of 18y (less 36d).
205

FANDAKIS, Harry Charles - CCA, 1.2.2002
Ipp AJA, Hidden & Barr JJ
Citation: R v Fandakis [2002] NSWCCA 5
s.5F appeal by Attorney General against interlocutory judgements or orders made in the LC. Respondent was the defendant.
During committal proceedings, defence counsel cross-examined an investigating police officer about consecutive entries in his notebook. One entry contained information by the person interviewed that led to defendant's arrest. The other entry contained details personal to the person interviewed. Counsel asked whether the persons interviewed were the same person. Counsel representing the Commissioner for Police raised a claim of public interest immunity, observing any answer to the question might enable the identification of the police informer. Counsel relied on the statement of a senior police officer (which annexed an affidavit) & upon a confidential statement. The magistrate overruled the objection, observing the material relied on did not meet the requirements of the court or of the Evidence Act. Counsel sought an adjournment overnight so that further material might be obtained which the court might consider acceptable. The application was refused. Counsel then sought an adjournment of at least half-an-hour to enable application to be made to a judge of the SC. That application was refused.
Appeal allowed: The magistrate erred in allowing the question to be asked & in requiring it to be answered, in refusing to adjourn the hearing to allow further material to be put before the court, in refusing to adjourn the hearing to permit her rulings to be reviewed & in her observations about the formalities necessary to substantiate a claim of public interest immunity.
206

LE, Anh Tuan - CCA, 24.5.2002 - 130 A Crim R 256
Sheller JA, Levine & Simpson JJ
Citation: R v Le [2002] NSWCCA 193
Conviction and sentence appeal.
Manslaughter.
6y with NPP of 4y.
Appellant stood trial for murder, was found not guilty of murder but guilty of manslaughter. The offence arose from a fight between 2 groups of people which included the deceased, his brother & the appellant. Deceased was stabbed with a knife. Appellant did not dispute he was involved in the fight, had taken up a knife during the fight & had run away afterwards. Primary issue at trial was whether he was the person present who had stabbed the deceased. The appellant could not affirm or deny that he stabbed the deceased. The brother of the deceased was to give evidence at trial but he left Australia before this could occur. Two statements made by the brother were read to the jury, with the trial judge warning the jury of the weight to be placed on the statements given that they did not have the advantage of seeing the brother give evidence. In summing up, his Honour also identified inconsistencies which arose between the 2 statements, the feelings of dislike between the brother & the appellant & the appellant's inability to cross-examine & challenge the truth of the statements. Counsel for appellant at trial did not object to the statements admitted because he believed they would assist in establishing the claim of self-defence. The Crown called 11 witnesses. One witness, on cross-examination, identified the person who had the knife as the appellant in the dock. The trial judge warned the jury in relation to court or dock identification. The evidence of the other witnesses was incompatible or inconsistent.
Whether verdict unreasonable - identification - statements - whether directions inappropriate.
Appeal allowed: verdict of acquittal entered.
207

KING, Shane Marcus - NSW SC, David Levine J, 31.5.2002
SELWOOD, Craige William
Judgement on Notice of Motion.
Each applicant made an application for a Certificate under s.2 of the Costs in Criminal Cases Act 1967.
Applicants were arraigned & pleaded not guilty to murder. The trial was set to commence on 8 April 2002. On 18 April the DPP informed the Court that it intended to proceed no further with the matter.
Between 8 & 18 April voir dires were conducted. Fundamental to the Crown case was the proposition that the accused were the last persons in the company of the deceased. The hearing of the case & the voir dires brought to light various matters that could have affected the conduct of the trial & its outcome, one of the matters being the urgent investigation by the prosecution of what became known as 'canine DNA'which involved obtaining technical information from the USA. However, there was no issue that the deceased had been in the company of the accused in their vehicle in which the dog had also ridden from time to time. There also was a question, based upon telephone records, as to whether the Crown could satisfy the Court that the accused were the last persons to see the deceased.
Orders made: Grant of a Certificate to each applicant; respondent to pay the costs of the applications.
208

HARRISON, Paul Shaun - CCA, 9.5.2002
Kirby J, Smart AJ
Citation: R v Harrison [2002] NSWCCA 198
Sentence appeal.
Steal MV; BE&S; being carried in a conveyance; + a number of offences taken into account.
Total of 4*y with NPP of 2y.
Appellant stole a new car from the security carpark of a block of units. He & co-offenders used the car in the commission of a BE&S which involved smashing the windows of a tobacconist shop & stealing cigarettes (value $11,212). They were interrupted by police & fled in the stolen vehicle. They collided with the pursuing police car, causing substantial damage to both vehicles.
Aged 20 - unfortunate upbringing - violent step-father - disrupted & fragmentary schooling - drug & alcohol abuse - gambling habit - severe cognitive difficulties - mildly intellectually disabled - short & long-term memory problems - illiterate - itinerant lifestyle - prior criminal history - prior juvenile custody.
First time in adult prison - parity.
Appeal dismissed.
209

GILL, Mark William - CCA, 22.3.2002
Dunford J, Carruthers AJ
Citation: R v Gill [2002] NSWCCA 93
Sentence appeal.
Ongoing supply of heroin.
3*y with NPP of 2y 8m.
On 4 occasions over a period of 3 weeks, applicant sold small quantities of heroin to undercover police officers. Total weight of drug was 0.36 grams.
Aged 33 - guilty plea - on bail & in breach of GBB at time of offences - poor education - drug addict - extensive criminal record - previous imprisonment.
Benefit from longer supervised parole period.
Appeal allowed: NPP reduced to 2*y.
210

ANDERSON, Noeline - CCA, 1.5.2002
Meagher JA, Bell & McClellan JJ
Citation: R v Anderson [2002] NSWCCA 194
Conviction and sentence appeal.
Murder.
17y with NPP of 13y.
Appellant was in a turbulent & violent marriage with deceased. Deceased had a criminal record that included convictions for assaulting appellant. Appellant strangled deceased with a piece of cord, then buried him beneath a concrete slab under the house.
Defence of provocation - incorrect directions by trial judge as to meaning of provocation contrary to s.23(2)(b) Crimes Act - incorrect suggestion by trial judge that the burden of proof was on the appellant - diminished impact of correct written directions - fresh evidence - findings of jury - conduct of defence counsel - conduct of deceased, including his sexual conduct.
Appeal allowed: new trial ordered.
211

ELDRIDGE, Jason John - CCA, 3.6.2002
Heydon JA, Greg James & Kirby JJ
Citation: R v Eldridge [2002] NSWCCA 205
Conviction appeal.
1 x robbery - 6y with NPP of 4*y; 1 x AOABH - 9m FT (concurrent).
Appellant snatched a bag from a woman after following her from the bank where she had cashed a company cheque for $3,000. Also in the bag was $2,080 which was in the woman's purse. The woman was 7 months pregnant at the time. As appellant left, he punched a man who was accompanying the woman.
Aged 26 at time of offence - lengthy criminal history, including interstate offences - priors include property, violent & driving offences - previous imprisonment.
Admissibility of evidence of similarity - relevance - prejudice - consideration of identification and similarity evidence - appropriate directions concerning identification and similarity evidence under s.116 and s.165(1)(b) Evidence Act - whether verdicts unreasonable.
Appeal dismissed.
212

ELLIS, Mark Richard - CCA, 17.5.2002
CARR, Aaron James
Hidden J, Smart AJ
Citation: R v Ellis; R v Carr [2002] NSWCCA 211
Sentence appeal.
Ellis: robbery using corporal violence - 4y with NPP of 2y 3m; receiving - 6m FT (concurrent).
Carr: robbery in company - 4y with NPP of 3y.
Ellis was aged 20 at the time of offences, Carr aged 19 years. Both had entered guilty pleas in the LC.
Appellants & 2 co-offenders stopped their car, alighted from it & approached 3 victims. A knife was produced & one victim ran down an alleyway. Carr & a co-offender chased him, threatened him with a knife & stole his wallet which contained $43. At the same time, Ellis & another co-offender punched the other 2 victims & threatened that they had a knife, although none was produced. They went through the pockets of one victim, then stole his watch. The other surrendered his wallet containing $70. Both these victims had been knocked to the ground. Victims suffered facial injuries & cuts to the body. When appellants' car was later stopped, a knife, the wrist watch & the cash were found.
Parity - relevance of sentences passed on juvenile co-offenders.
Ellis: appeal allowed - resentenced to 3y with NPP of 1y 9m for the robbery using corporal violence.
Carr: resentenced to 3y with NPP of 2y.
213

NARAYANAN, Natesan & ANOR - CCA, 30.5.2002
Hodgson JA, Barr & Greg James JJ
Citation: R v Narayanan & Anor [2002] NSWCCA 200
Conviction and sentence appeal.
Financial Transactions Reports Act offences.
Narayanan: 3 x conduct transactions so as to avoid reporting requirements (s.31(1)) - 10m with NPP of 6m on each count (concurrent); 1 x failure to provide information required (s.28(1)) - 4m FT (concurrent).
Singapore Exchange & Finance Pty Ltd (SEF): 3 x conduct transactions so as to avoid reporting requirements (s.31(1)) - fined $30,000 on each count; 1 x failure to provide information required (s.28(1)) - fined $10,000. (Total fine of $100,000.)
Narayanan was CEO, a director & shareholder of SEF, a company trading in currency exchange & the sale of travellers cheques. A series of transactions took place over a period of 3 weeks involving the purchase of travellers cheques, the purpose of which was to disguise what would have been a significant transaction involving the transfer of currency of more than $10,000 in value. SEF, through Narayanan, failed to communicate to the statutory prescribed person that the company was party to a cash transaction involving the transfer of moneys exceeding $10,000.
Narayanan aged 50 at time of offences - exemplary character - no priors.
Whether error in holding there was a case to answer on counts under s.31(1) - whether verdicts cannot be supported having regard to evidence - error in directions on what constituted a cash transaction under s.31 - whether trial miscarried as a result of prejudicial evidence given by former employee of SEF.
Narayanan: conviction appeal allowed in part - conviction on one count under s.31(1) quashed; sentence appeal dismissed.
SEF: conviction appeal allowed in part - conviction on one count under s.31(1) quashed; total sentence reduced to aggregate fine of $70,000.
214

MARSCHALL, Lee Anthony - CCA, 21.5.2002 - 129 A Crim R 381
Smart AJ
Citation: R v Marschall [2002] NSWCCA 197
Appeal against final sentences imposed in the Drug Court.
2 x take & drive conveyance without consent; 3 x possess car/housebreaking implements; steal property from dwelling house; 2 x goods in custody; 2 x maliciously destroy property; 3 x larceny; drive in manner dangerous; drive whilst disqualified.
Total of 15m 3w with NPP of 10m 3w.
No factual details provided in judgement.
Aged 28 at time of offences - later offences committed whilst on bail - violent & alcoholic father - priors include assault, resist arrest, enter land/premises without lawful excuse, property, drug & driving offences - previous imprisonment.
Sentencing - approach to time spent in full-time residential centre when offender being sentenced on termination of Drug Court Program.
Appeal dismissed.
215

RENTON, Deborah Anne - CCA, 18.3.2002
Dunford J, Carruthers AJ
Citation: R v Renton [2002] NSWCCA 74
Sentence appeal.
7 x armed robbery with offensive weapon (blood-filled syringe).
Total of 6y with NPP of 3y.
Applicant committed a number of armed robberies upon small businesses over a period of 2 weeks, threatening female victims aged between 17 & 56 with a blood-filled syringe. Applicant obtained small amounts of cash from the robberies, the largest amount being $800.
Aged 39 at time of offences - difficult life - heroin addict - in abusive relationship with drug addict who was also a chronic alcoholic & manic-depressive - forced by means of physical violence to work as a prostitute to support joint drug habits - remorse - genuine concerns for victims - good prospects of rehabilitation - priors include property, driving, fraud/dishonesty offences - previous imprisonment.
Whether sentence excessive.
Appeal dismissed.
216

LE, Ian Van - CCA, 29.5.2002 - 54 NSWLR 474; 130 A Crim R 44
Heydon JA, Dunford & Buddin JJ
Citation: R v Le [2002] NSWCCA 186
Conviction appeal and application for leave to appeal against sentence.
Supply heroin (deemed).
3*y with NPP of 2y.
The total quantity of the drug was 14.71 grams.
Police executed a search warrant upon appellant's home. At the time, he was living with a young woman. During the search, police heard the toilet flush. They ran upstairs to find appellant near the vicinity of the toilet. All they could see in the toilet bowl was some froth, probably caused by some toilet cleaner. Some time later other police looked at the toilet and this time, amongst the froth, they saw 2 plastic packets floating in the bowl. One plastic packet was wound into a ball & was covered in elastic bands. The parcel was subsequently weighed & analysed & found to consist of 13.6 grams of powder containing heroin with a purity of 79%. The other item was a plastic bag containing 2 resealable plastic bags which again were weighed & analysed & found to contain white powder, one containing 0.5 of a gram, the other 0.61 of a gram, both containing heroin. At no time did the police see the offender in possession of any drugs & at no time did they see him put them in the toilet. At trial, the young woman said the drugs belonged to her, although on a previous occasion she said the drugs belonged to the appellant.
Trial judge referred to appellant as being aged 21 at time of offence, although he was actually 19. The trial judge got the date of the offence wrong, thus leading him to underestimate the length of the appellant's period free of crime by 3 years. The trial judge also said the quantity of heroin involved was 34.7 grams. Although the Crown had this error corrected, the sentence was pronounced immediately after the correction.
Unfavourable witnesses - prior inconsistent statement - leave to cross-examine - considerations relevant to exercise of discretion to grant leave - whether grant of leave vitiated by error of law - appropriate time for granting leave - questioning - scope of leave - effect on nature & outcome of trial.
Conviction appeal dismissed.
Application for leave to appeal against sentence dismissed.
217

COTTRELL, Norman John - CCA, 3.6.2002
Greg James J, Carruthers AJ
Citation: R v Cottrell [2002] NSWCCA 213
Sentence appeal.
Indecent assault on male.
3*y with NPP of 2*y.
The above offence was committed 21 years ago. The maximum penalty then existing was 5y. The facts were that the applicant fondled the genitals of his 12 year old foster son whilst the boy was in the bath. It was only after the complainant had moved interstate & informed police of those events that action was taken & the applicant first spoken to by police. This was after applicant's release from gaol after serving other sentences in respect of which he had appealed to the CCA. Had the above offence come to light earlier, it may have been dealt with at the same time.
Aged 73 at time of sentence, now aged 74 - homosexual paedophile throughout adult life - considerable prior record - previous imprisonment.
Delay in complaint - advanced age of applicant - special circumstances - need for continued drug treatment - rehabilitation - contrition - whether sentence manifestly excessive.
Appeal allowed: resentenced to 2y suspended sentence.
218

JBV - CCA, 3.6.2002
Heydon JA, Hidden J, Blanch AJ
Citation: R v JBV [2002] NSWCCA 212
Conviction and sentence appeal.
3 x assault & commit act of indecency; 1 x attempt to carnally know.
Total sentence of 2y with NPP of 1y.
The offences were alleged to have been committed over a period of almost 7* years, commencing in September 1977 & concluding at the end of 1984. The complainant was the appellant's granddaughter & was aged between 4 & 11 years at the time of the alleged offences. The offences charged were not isolated occurrences but were committed against a background of other sexual acts committed upon the complainant whenever she visited her grandparents.
Delay in complaint - Longman direction - whether jury adequately warned of danger in convicting because of danger of mistaken recollection & forensic disadvantage to appellant due to delay in complaint - whether conviction erroneous - scope of principle in Longman.
Appeal allowed: verdicts of acquittal entered.
219

LOLESI, Shontel - CCA, 21.5.2002
Greg James J, Smart AJ
Citation R v Lolesi [2002] NSWCCA 189
Sentence appeal.
3 x robbery armed with offensive weapon (machete); 2 x steal MV.
Total of 4y 4m with NPP of 3y.
Appellant & his juvenile co-offender, who was armed with a machete, robbed a convenience store employee of $500, as well as a quantity of cigarettes. The next day, they stole a car & subsequently used it as a get-away vehicle when, armed with a machete, they robbed a person of $600, a mobile phone, condoms & a quantity of cigarettes. The following day, co-offender, armed with the machete & with a 3rd person present, robbed a service station of $600, a quantity of telephone recharge cards & chocolate bars. A MV was also stolen.
Aged 19 at time of offences - early guilty plea - drug problem - lesser role in offences - contrition & remorse - prospects of rehabilitation - priors include common assault, shoplifting - not previously imprisoned.
Disparity - different regimes - applicant an adult, co-offender a child - open to court to intervene - circumstances favouring applicant - special circumstances.
Appeal allowed in part for robbery offences: new total sentence of 2y 9m with NPP of 18m.
220

LI, Alan Siu Lun - CCA, 22.5.2002
Ipp AJA, Dunford J, Burchett AJ
Citation: R v Li [2002] NSWCCA 215
Application for leave to appeal, pursuant to s.5F(3)(a) Criminal Appeal Act 1912, from an interlocutory decision refusing an application for a permanent stay of proceedings.
No details given, except that counsel for the applicant urged that the interlocutory decision, if left standing, would impede the applicant's defence at trial.
Leave to appeal refused.
221

COOK, Adam Maxwell - CCA, 31.5.2002
Buddin J, Smart AJ
Citation: R v Cook [2002] NSWCCA 216
Sentence appeal.
Supply large commercial quantity cocaine (2.003 kgs).
6y 4m with NPP of 4y 9m.
Following a tip-off, police stopped a MV being driven by the applicant. He was the sole occupant of the vehicle. During a search of the vehicle, police found 2 almost equal sized blocks of cocaine inside shopping bags, as well as a pair of latex surgical gloves in applicant's pocket. Applicant participated in an ERISP in which he denied any knowledge of the contents of the packages or the surgical gloves. He later told an officer from the Probation and Parole Service that he had been given $500 to deliver what he understood to be car parts.
The complaint on appeal was as to the length of the NPP.
Guilty plea - impressive work record - special circumstances - devastating impact of a motor bike accident - prior good record - proven ability to rehabilitate - prospects for future rehabilitation.
Factors relevant to a finding of special circumstances - whether some other sentence warranted in law - whether NPP manifestly excessive.
Appeal dismissed.
222

GARDINER, Terrence James - CCA, 5.6.2002
Dowd J, Smart AJ
Citation: R v Gardiner [2002] NSWCCA 209
Sentence appeal.
15 x fraudulent misappropriation.
Total sentence of 3y with NPP of 2y 3m.
Applicant was a former & respected member of the NSW Police Service. He served as a uniformed officer & detective in many areas of the Service, including the Fraud Squad & Internal Affairs. At the time of his compulsory retirement on medical grounds in 2000, he held the rank of Sergeant. Applicant had for many years been first the Secretary then the President of the NSW Police Cricket Association & at times ended up discharging the roles of President, Secretary & Treasurer. It was during the latter years of his association with the Cricket Association that the fraudulent misappropriations occurred. A total amount of $72,500 was misappropriated. On 4 occasions, applicant paid moneys into the account of the Association totalling $13,000, thus reducing the amount owed to it to about $59,500.
Guilty plea - same day admission of false swearing - importance of repayment - protective custody - personal danger - serious medical condition - special circumstances - prior bravery.
Appeal allowed on 3 counts, resulting in new total sentence of 2*y with a NPP of 21m.
223

WU, Eddie - CCA, 3.6.2002
Greg James J, Carruthers AJ
Citation: R v Wu [2002] NSWCCA 214
Sentence appeal.
3 x armed robbery (armed with tomahawk); 1 x being armed with intent to commit indictable offence (assault); + an offence taken into account (fail to pay taxi fare).
Total of 7*y with NPP of 5y.
The armed rob offences were committed upon pizza delivery persons, & the being armed with intent offence committed upon a taxi driver. The offences occurred over a period of 11 days.
Aged 19y 3m at time of sentence - guilty plea - contrition - remorse - short but serious record for offences as a juvenile, including the commission of an aggravated indecent assault and 2 breaches of probation - out of character behaviour showing anti-social tendencies - good work history - away from mother's care and supervision - leading gang life existence.
Application of Henry - sentencing statistics for similar multiple offences - whether sentence outside discretionary range - prospects of rehabilitation - whether excessive weight given to Probation and Parole officer's report.
Appeal dismissed.
224

PROUD, Jason James - CCA, 24.5.2002
Dowd J, Smart AJ
Citation: R v Proud [2002] NSWCCA 219
Sentence appeal.
1 x BE&S; + 4 matters on a Form 1 (BE&S).
6y with NPP of 4*y.
Applicant broke into a unit owned by a 68 year old woman, went into the bedroom, punched a hole in the base of a bedside table drawer & stole cash contained in 3 small red tins. The amount of money taken was $40,000, which was the victim's life savings & money she had received upon the death of her husband.
The Form 1 offences were also perpetrated upon private homes, with moneys stolen being (1st offence) $14,000-$15,000; (2nd offence) $10,000; (3rd offence) $10,000; (4th offence) $7,000.
Aged 28 at time of offences - guilty plea - eldest of 8 siblings - difficult childhood with grossly inappropriate parenting - natural father encouraged applicant to fight & take drugs from very early age - some time during childhood spent in foster care - left home at age 13 - married then separated - has 2 children - some past employment - expensive heroin problem, spending up to $500 a day on drugs.
Whether sentence manifestly excessive - rehabilitation - special circumstances - remorse.
Appeal dismissed.
225

GIFFORD, Christine Ann - NSW SC, Barr J, 4.6.2002
Citation: R v Gifford [2002] NSWSC 498
Judgment.
Murder.
Judge alone trial. No dispute that accused caused the death of her daughter by strangulation. She told police her brother had taken the child to live with him, however, this was untrue. Police conducted a search & found the child's body. She had been strangled with a length of rope, which was wound tightly around her neck. Accused's DNA was found on the rope. Accused claimed not to remember the circumstances of the child's death.
Aged 32 - family history of psychiatric disorder - fear of bikies & Special Service - believed she had a special gift and a power to connect with God - for a while she thought she was God - auditory hallucinations in the form of whispers - fear of demons and devils - marked disturbance of thought - schizophrenia.
Not guilty by reason of mental illness.
226

O'DEA, Leasa Narelle - CCA, 22.3.2002
Dunford J, Carruthers AJ
Citation: R v O'Dea [2002] NSWCCA 91
Sentence appeal.
3 x dangerous drive occasioning death (extension of time).
Total of 6y with NPP of 3*y.
Applicant was under the influence of intoxicating liquor and drugs at the time of the offences. The 3 victims were all passengers in the car driven by applicant.
Gross abandonment of responsibility in driving - unlicensed driver.
Aged 29 at sentence - guilty pleas at earliest opportunity - remorse - good character - 2 sons aged 8 & 6.
Fresh evidence - pregnancy not disclosed to sentencing judge - effect of imprisonment on young family.
Appeal dismissed.
227

McGRATH, Andrew Mark - CCA, 18.4.2002
Mason P, Barr & McClellan JJ
Citation: R v McGrath [2002] NSWCCA 207
Sentence appeal.
Murder.
18y with NPP of 13*y.
Vigilante type killing.
Applicant travelled from Fennell Bay to deceased's home in Muswellbrook where he attacked the deceased by knocking him to the ground then punching & kicking him in the back of the head. He then put a damp cloth over the deceased's mouth & suffocated him. He stole the contents of the deceased's wallet, wiped his fingerprints off various objects & left. Applicant made admissions to his flat mate the following day. A few days later, the flat mate, who was fitted with a listening device, had another conversation with the applicant in which applicant described the killing in remorseless detail. He boasted of the killing on the basis that the deceased was a paedophile. Applicant gave varied accounts of his motives for the killing.
Findings of fact - whether inadequate weight given to subjective features.
Appeal dismissed.
228

MAROUCHE, Stephen Hassan - CCA, 23.5.2002
Dowd J, Smart AJ
Citation: R v Marouche [2002] NSWCCA 202
Sentence appeal.
Robbery in company; take conveyance without consent of owner; escape lawful custody; + Form 1 offences.
Total of 5y with NPP of 3*y.
A week after escaping from Long Bay Gaol, applicant stole a car which he claimed an acquaintance had given him along with a ground-down car key. Applicant went for a drive in the stolen car with 4 co-offenders. They came across a man & woman walking down the street. Three of the co-offenders approached them from behind. Two of the co-offenders punched the man in the face & body, the 3rd co-offender pulled the woman's handbag off her shoulder. All the offenders escaped in the stolen car. The male victim suffered a sore & swollen face, a bruised back & a small graze to his right wrist. Items from the handbag were found in the flat where the applicant was staying. Police also found a .22 calibre pistol & 32 rounds of ammunition. One round of ammunition was found in the stolen car.
Aged 20 at time of offences - early guilty plea - remorse, contrition - serious drug problem - desire to participate in rehabilitation - disturbed & traumatic family background - protective custody - priors include property offences & offences of violence - previous imprisonment.
Young offender - totality - need to adjust NPP to reflect accumulation of sentences.
Appeal allowed: resentenced to total of 5y with NPP of 3y.
229

JOHNSTON, Peter Phillip - CCA, 3.6.2002
Dunford J, Carruthers AJ
Citation: R v Johnston [2002] NSWCCA 201
Sentence appeal.
1 x sexual assault (threaten ABH with offensive weapon with intent to have intercourse); 4 x aggravated B&E and commit serious indictable offence (sexual assault & steal); 2 x aggravated enter dwelling with intent to steal; 7 x sexual intercourse without consent.
Total of 20*y with NPP of 16*y.
Over a period of 3 months, appellant broke into 2 houses in his own neighbourhood & committed sexual offences upon the female residents. On each occasion, the victim's family was present in the house when these offences occurred. On all occasions, the offences were accompanied by threats of physical harm to the victims & their families. Upon apprehension, appellant admitted to a further offence some 8 years previously which was accompanied by threats of violence against the victim & her children.
Aged 28 at time of 1st offence - previous convictions for similar offences, including multiple counts of wilful & obscene exposure, peer & pry, stealing, indecent assault, driving offences - previous imprisonment.
Whether sentence excessive - protective custody - efforts at rehabilitation & education since imprisonment - need for strict supervision in community - high level of criminality.
Appeal allowed: resentenced to total of 20*y with NPP of 15y.
230

PENG, Lim Yok - CCA, 31.5.2002 - 130 A Crim R 293
Buddin J, Smart AJ
Citation: R v Peng [2002] NSWCCA 208
Sentence appeal.
Conspire to cheat and defraud financial institutions of large sums of money.
5y 8m with NPP of 4y 3m.
Appellant was a member of a major credit card fraud syndicate. Counterfeit cards were produced & given to 'shoppers'who were flown in from Malaysia for short periods of time. These 'shoppers'were supplied with lists of high-priced items to purchase with the counterfeit cards & were paid 20% of the value of the goods for their services. A number of merchants co-operated in the scheme, running bogus transactions on counterfeit cards & dividing the money subsequently received from financial institutions. The total value of goods so obtained was estimated to be $16 million. Appellant organised & supervised the 'shoppers', the shipping & subsequent disposal of illegally obtained goods, as well as personal use of counterfeit cards.
Aged 40 at time of offence - medical condition - contrition, remorse - rehabilitation - criminality of high order - no priors.
Parity - proportionality.
Appeal allowed: resentenced to 5y with NPP of 3*y.
231

BRUPPACHER, Henry Rudolf - CCA, 10.5.2002
Newman AJ, Carruthers AJ
Citation: R v Bruppacher [2002] NSWCCA 182
Sentence appeal.
Supply heroin on an ongoing basis.
5*y with NPP of 3y 3m.
A man was apprehended by police shortly after the applicant supplied him with 1.9 grams of heroin for $120. Eight days later, applicant supplied 0.11 grams of heroin for $50 to another man. He also supplied 0.06 grams of heroin for $50 to a woman on the same day. Police then executed a search warrant at applicant's premises & found 0.15 grams of heroin, some cannabis leaf, equipment associated with drug dealing & more than $1,000 in cash. Police had also conducted telephone surveillance which revealed applicant received an average of 35 calls a day which were related to drug dealing.
Aged 32 at time of offence - drug addict - problematic dealings with DOCS regarding his son - prior drug offences, as well as property & driving offences, unlawful entry, fail to cease to loiter & a weapons charge - previous imprisonment.
Whether sentence manifestly excessive.
Appeal dismissed.
232

WILSON, Geoffrey Colin - CCA, 12.3.2002
Heydon JA, Dunford & Buddin JJ
Citation: R v Wilson [2002] NSWCCA 65
Crown appeal.
1 x robbery whilst armed with offensive weapon; 1 x demand money with menaces.
Total of 3y 4m with NPP of 20m.
One evening, respondent & another male boarded a train & approached a man who was sleeping. They shook him awake, then demanded his money. They produced a clear syringe with a needle attached, saying 'otherwise you will get AIDS'The victim had no money on him, however, the offenders took his mobile phone. Later that evening, they approached a second victim on the street & asked him for money. Fearing violence, the victim gave them $10.
Aged 21 at time of offences - early guilty plea - on parole for similar offence - drug & alcohol problem - protective custody - contrition - priors - previous imprisonment - special circumstances - double jeopardy.
Whether sentence manifestly inadequate.
Appeal dismissed.
233

WONG, Nelson Tak Fat - CCA, 15.5.2002 - 127 A Crim R 243
LEUNG, Jackie Kai Chu
Wood CJ at CL, Sully & Greg James JJ
Citation: R v Wong; R v Leung [2002] NSWCCA 169
Crown appeal (after the High Court decision in Wong & Leung v The Queen).
Import commercial quantity heroin.
12y with NPP of 7y.
Respondents were involved in the importation of 9.356 kgs of pure heroin which was hidden inside hollow marble pedestals. Following police interception, the heroin was removed & replaced with an inert substance, after which the delivery was completed & the pedestals were taken to a garage where they were broken open. Recorded telephone conversations incriminated the respondents.
Leung: Aged 28 at time of offence - student - role more than courier - engaged in ongoing process of supply - no priors.
Wong: Aged 22 at time of offence - unemployed - role between courier & principal - engaged in ongoing process of supply - priors include AOABH, rob in company - previous PD - previous recognizance.
Major participants - triple jeopardy - instinctive synthesis - guideline judgements.
Appeals allowed: each resentenced to 14y with NPP of 8y.
234

RAAD, Ahmad - CCA, 18.3.2002
Dunford J, Carruthers AJ
Citation: R v Raad [2002] NSWCCA 75
Sentence appeal.
2 x aggravated armed robbery; robbery armed with offensive weapon; Form 1 offences.
Total of 6y with NPP of 4y.
Applicant & co-offender produced a knife & threatened to stab a person sitting in his car. They took $55, as well as a backpack. While on bail for this offence, applicant demanded money from a male resident of a backpackers' hotel whilst in possession of a replica rifle & a knife, threatening to shoot and/or stab him. Applicant stole a pair of sunglasses & a small mini-torch from the victim's bag. Later in the morning, applicant approached 2 young men & told them he was a police officer. He had what appeared to be a silver-coloured pistol tucked in the front of his trousers. He demanded the young men's bags, wallets & possessions, threatening to shoot them.
Aged 18 at time of offences - family problems - good prospects of rehabilitation - good character references - priors - no previous imprisonment.
Appeal allowed in part, with new NPP of 3y.
235

DILLON, Matthew - CCA, 5.6.2002
Adams J, Carruthers AJ
Citation: R v Dillon [2002] NSWCCA 221
Sentence appeal.
Robbery in company.
3*y with NPP of 15m.
Applicant & 2 others (juveniles) robbed 2 young male pedestrians of cash and a mobile phone. The victims were threatened with violence if they 'did anything silly'One victim was taken to an ATM & money was withdrawn from his account. The applicant was aware before the attack that violence of some nature would be used, although he had not instigated the offence.
Aged 18y 5m at time of offence - unfortunate background - completed HSC - early guilty plea - remorse.
Plea of guilty - Thomson and Houlton (2000) 49 NSWLR 383 - appropriate discount - requirement to qualify sentence - requirement to specify - public policy.
Appeal allowed: resentenced to 3y with NPP of 11m.
236

GOH - CCA, 14.6.2002
Spigelman CJ, Adams J, Blanch AJ
Citation: R v GOH [2002] NSWCCA 234
Crown appeal against an order made in the DC dismissing a charge of affray pursuant to the provisions of s.10 Crimes (Sentencing Procedure) Act 1999. The Crown submitted that the sentencing judge erred in applying the provisions of s.10 & that in the result the order of the court was manifestly inadequate. The affray incident occurred between 2 groups of young men during the very early hours of the morning in a lane near Galaxy World, George Street. The respondent had pleaded guilty to the offence of affray, however, the judge determined that his involvement was in the form of self-defence. On appeal, the Crown acknowledged an appropriate sentencing range might have included a supervised recognizance, however, the failure to record a conviction had the effect that there was no punitive aspect to the order of the court & it contained no relevant personal or general deterrence.
Whether error in findings.
Appeal dismissed.
237

ARMSTRONG, Kathryn Ann - CCA, 22.3.2002
Dunford J, Carruthers AJ
Citation: R v Armstrong [2002] NSWCCA 94
Sentence appeal.
Make false instrument; use false instrument; obtain money by deception; larceny; + Form 1 offences.
Total of 3y with NPP of 2y 3m.
Applicant used an apparent friendship with her neighbours to steal a marriage certificate, credit cards, Medicare cards, an Australian Taxation Office cheque & other items. She used these items to make & use a number of false instruments to deprive, or attempt to deprive, her neighbours of various sums of money through a number of bank accounts.
Aged 32 at time of 1st offence - guilty pleas - on bond - long history of drug addiction - extensive criminal record - incorrigible & repetitive offender - prior similar offences - previous imprisonment.
Whether special circumstances.
Appeal dismissed.
238

SJB - CCA, 31.5.2002 - 129 A Crim R 572
Sheller JA, Levine & Simpson JJ
Citation: R v SJB [2002] NSWCCA 163
Conviction appeal.
Sexual intercourse without consent; 2 x indecent assault and act of indecency.
Total of 18m with NPP of 9m.
The 11 year old female complainant was living with her mother & the appellant. Appellant entered the complainant's bedroom & touched her on the vagina outside her underpants. About a month later, he entered complainant's bedroom, held her legs down & put his finger inside her vagina. When complainant was aged 12 years, he entered her bedroom & put his hands inside her underpants. Complainant first reported the incidents at age 15.
Whether unsafe and unsatisfactory - whether convictions founded on unreliable evidence - whether error in law in failure to give jury a direction that it was dangerous or unsafe to convict on the evidence.
Appeal allowed: new trial ordered.
239

McSMITH, Steven - CCA, 14.3.2002
Heydon JA, Dunford & Buddin JJ
Citation: R v McSmith [2002] NSWCCA 68
Conviction and sentence appeal.
3 x aggravated indecent assault (with person under 16y).
Total of 18m PD with NPP of 12m.
Appellant improperly touched the private parts of his de facto wife's 9 year old daughter.
Aged 34 at offences - priors include drug, property, violent, driving offences - no previous imprisonment.
Whether error in allowing Crown to amend one count on which appellant was convicted & another on which trial judge directed a verdict of acquittal - whether error by directing jury as to evidence constituting these counts - whether error in not directing jury to acquit in relation to count on which appellant convicted - whether error in ruling appellant was prohibited from cross-examining on reports tendered in Family Court proceedings - whether trial miscarried - whether error in admitting evidence of uncharged sexual assaults committed upon complainant as evidence of relationship - failure to lead evidence of good character.
Appeal allowed: new trial ordered.
240

NICOLA, Steven - CCA, 11.3.2002
Spigelman CJ, Barr & Bergin JJ
Citation: R v Nicola [2002] NSWCCA 63
Conviction appeal.
2 x sexual intercourse without consent.
Total of 7y with NPP of 5y.
Complainant was a friend of the appellant's fiancee. Appellant returned from his bucks' night, woke the complainant who was staying over at the fiancee's home for the night, & had intercourse with her without her consent. Complainant told her family but did not report the matter to the police. This offence occurred in 1993. In 1999, complainant again stayed overnight at her friend's home, the friend & the appellant now being married, when, during the night, appellant woke her & had intercourse without her consent.
Whether verdict unreasonable & not supported by evidence - fresh evidence - whether DNA evidence improperly or illegally obtained & should have been excluded.
Appeal dismissed.
241

LE, Thi Phuong - CCA, 14.6.2002
Adams J, Blanch AJ
Citation: R v Le [2002] NSWCCA 232
Sentence appeal.
Knowingly take part in supply of large commercial quantity heroin.
9*y with NPP of 5y 4m.
Applicant was involved in the commission of the offence, along with 3 co-offenders. The amount of heroin involved was 2,103.5 grams which, upon analysis, was found to contain 893 grams of pure heroin. It was estimated the heroin had a street value of $2.1 million, however, the sentencing judge accepted that as a vague estimate. The offences were detected during a targeted NCA operation. Sentencing judge found that the applicant's participation was confined to one day.
Aged 36 at time of offence - Vietnamese - difficult background history - spent 2 years in refugee camp in Hong Kong before arriving in Australia - 4 children - limited English - isolated in gaol - no prior convictions.
Parity.
Appeal dismissed.
242

AVANESS, Narbeh - CCA, 17.6.2002
Greg James, Smart AJ
Citation: R v Avaness [2002] NSWCCA 230
Sentence appeal.
2 x robbery in company.
Total of 4y with NPP of 2y.
Applicant & 3 co-offenders drove around in a car, attacking young victims at random & stealing their possessions. Some violence was used. Two co-offenders were juveniles. When taken to the police station, applicant declined to be interviewed or participate in an identification parade, however, he was videoed so that a record could be made of his appearance at the time. The co-offenders were also videoed for that purpose. At trial, the video was tendered into evidence.
Aged a little over 18 at time of offences - guilty plea - problem with anger management - need for continued counselling over extended period - no previous imprisonment.
Applicant disputed his role in offences - attempts at rehabilitation - insufficient weight given - failure to give sufficient discount for early guilty plea - whether sentence excessive.
Appeal dismissed.
243

BIKIC, Ned (Nedjelko) - CCA, 20.6.2002
Giles JA, Sully & Levine JJ
Citation: R v Bikic [2002] NSWCCA 227
Conviction appeal.
Murder; manslaughter.
Total of 17y with NPP of 12y.
Offences involved an assault upon 2 men by a group of offenders. Both victims were shot. No clear motive for shootings & unclear who fired the shots. Applicant convicted of murder on one count on the basis he was aware of the presence of guns & contemplated using them with requisite intent for murder; & convicted of manslaughter on the basis of a shot fired after provocation. See R v Bikic [2001] NSWSC 571.
Fresh evidence - principles to be applied whether or not fresh evidence - whether misdirection on contemplation required for joint criminal enterprise - whether failure to leave defence of provocation or self-defence to jury - whether convictions unreasonable - whether it was open to jury to be satisfied beyond reasonable doubt that appellant was present at crime scene - reliability of evidence of witness - compromised credibility & inconsistency with other evidence - whether miscarriage of justice.
Appeal dismissed.
244

HENNOCK, Benjamin David - CCA, 17.6.2002
Greg James J, Smart AJ
Citation: R v Hennock [2002] NSWCCA 229
Sentence appeal.
Ongoing supply of drugs (MDMA); + Form 1 offences (supply MDMA, supply cannabis).
4y with NPP of 2y.
Offences committed through an intermediary who dealt with an undercover police agent engaged in the prosecution of a controlled operation. That intermediary indicated his sources of supply of the MDMA to the agent, one of those sources being the applicant. Following dealings the intermediary had with the undercover agent wherein 10 MDMA tablets then 200 MDMA tablets were supplied to the agent, the applicant met the undercover agent & supplied him with 40 MDMA tablets for $1,500.
Aged 19 at offences - guilty plea - on protection - need for lengthy supervised rehabilitation - family support.
Totality - whether sentence excessive.
Appeal dismissed.
245

LEE, Doo Jin - CCA, 19.6.2002 - 131 A Crim R 209
Spigelman CJ, Mason P, Barr, Bell & McClellan JJ
Citation: R v Lee [2002] NSWCCA 236
Sentence appeal.
Aggravated dangerous drive causing GBH.
3y with NPP of 18m; disqualified from driving for 3 years.
As applicant approached an intersection, he ignored the traffic control lights & turned right into the path of a motorcycle. The motorcyclist suffered serious injuries, including a broken pelvis, right leg, right elbow & left wrist. Applicant was under the influence of alcohol at the time (0.190 grams per 100 millilitres).
Guilty plea - prior drink drive offences - changed drinking habits - resumed previous drinking habits after his only child was murdered in a gang attack - suffering from deep depression - unlikely to re-offend.
Guilty plea - whether sentencing judge took into account utilitarian value of plea.
Appeal allowed: resentenced to 2y 3m with NPP of 1y 1m 2w.
246

RANDALL, Bruce - CCA 12.6.2002
Adams J, Blanch AJ
Citation: R v Randall [2002] NSWCCA 239
Sentence appeal.
Steal.
3*y with NPP of 21m.
A 77 year old woman was placing her groceries in the boot of her car which was parked in the carpark of a shopping centre when the applicant, accompanied by a young female, pushed the woman, took her handbag & ran off. A number of people gave chase & the applicant was caught & held until police arrived. The woman suffered a laceration to her right hand & bruising to her left arm.
Guilty plea - Aboriginal - socially and economically deprived community - hospitalised for 2 months at age 5 as a consequence of petrol sniffing - moderately to severely intellectually handicapped.
General deterrence - 'substantial and inappropriate significance' - special circumstances.
Appeal allowed: resentenced to 2*y with NPP of 17m.
247

FLAVELL, Rodney Sean - CCA, 3.6.2002
Greg James J, Carruthers AJ
Citation: R v Flavell [2002] NSWCCA 220
Sentence appeal.
1 x AOABH whilst armed with offensive weapon; 1 x affray whilst armed with offensive weapon; + Form 1 offence of malicious damage.
Sentenced to total of 6y 5m with NPP of 3*y.
Applicant, affected by alcohol, armed himself, broke into the home of his sister & her husband, then attacked the sister's husband with a knife.
Unsettled life - excessive drinking - drugs - personality disorder - loss of control when using alcohol - dysfunctional approach to relationships - priors include malicious injury and assault, driving offences, malicious damage - no prior full-time custodial sentence.
Direct relationship between offences and mental disorder.
Appeal allowed: resentenced to total of 6y 5m with NPP of 2*y.
248

JORDAN, Steve - CCA, 24.6.2002
Hidden & Buddin JJ
Citation: R v Jordan [2002] NSWCCA 228
Sentence appeal.
Count 1: Ongoing supply of cocaine - 3*y with NPP of 12m (cumulative upon FT on 2nd count);
Count 2: Supply cocaine - 3y FT.
Effective total of 6*y with NPP of 4y.
Applicant worked as a barman at a caf* in Kings Cross. Undercover police officers went to the caf* & bought cocaine from applicant on 5 separate occasions. The first 4 purchases were each of 1 gram at a price of $200 & the last was for 3 grams for $550. The cocaine was about 30% pure on each occasion. Upon arrest, police conducted a search of applicant's flat above the caf*. There they found cocaine in plastic bags, a set of scales & other paraphernalia associated with drug supply. The cocaine found in the flat weighed a little under 62 grams & was about 30% pure.
Aged 51 at time of offences - born in Czechoslovakia - no family here - lonely existence - paranoid schizophrenia - dependence on cocaine - gambling problem - prior offence of supply commercial qty cocaine - previous imprisonment.
Cumulative sentences - whether total sentence excessive.
Appeal allowed: resentenced to total of 5*y with NPP of 3y.
249

ISSA, Mohammed Ilyas - CCA, 21.6.2002
Sheller JA, Levine & Simpson JJ
Citation: R v Issa [2002] NSWCCA 206
Conviction and sentence appeal.
1 x supply large commercial quantity heroin; + Form 1 offences (supply commercial quantity heroin; supply large commercial quantity heroin).
8y with NPP of 6y.
The offences were detected during a covert operation conducted by the Australian Federal Police.
Plea of guilty - claimed 'under pressure' from legal representatives - inclusion of life sentence offence on Form 1 - whether sentence manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed: matter remitted to DC.
250

EVERS, Anthony Neil - CCA, 5.6.2002
Adams J, Carruthers AJ
Citation: R v Evers [2002] NSWCCA 223
Sentence appeal.
1 x assault with intent to rob being armed with offensive weapon; 1 x robbery whilst armed with offensive weapon.
6y with NPP of 4*y (declining to find special circumstances).
The 1st offence involved applicant entering a supermarket, threatening a shop attendant with a knife & demanding money. The shop attendant threw sweets & other items at the applicant, whereupon applicant ran away. The 2nd offence occurred when the applicant, on the same day, entered a liquor store with a knife & baseball bat & demanded the contents of the till. The attendant complied with the demand, after which the applicant left the store on a bicycle. Police were called, arrived fairly promptly & the applicant was arrested after a short pursuit. He remained in custody, bail denied, until the date of sentence some 2* months after arrest. Although a report on the psychological assessment of the applicant had been arranged, legal counsel failed to present it before the sentencing judge.
Aged 23 at date of sentence - on disability pension due to dyslexia - limited education - never held employment - numerous prior offences including offences of violence & sexual offences.
By consent, psychological report placed before the Court - intellectual disability - special circumstances - whether sentences excessive.
Appeal allowed: resentenced to total of 5y with NPP of 3y.
251

KYM, Peter - CCA, 10.5.2002
Newman & Carruthers AJJ
Citation: R v Kym [2002] NSWCCA 235
Application for extension of time to appeal against sentence.
1 x use false instrument.
Applicant was sentenced to 2y PD, however, the PD order was revoked some months later as he failed to comply with its terms & the sentence was converted to a FT of 2y 1m.
The offence involved the applicant presenting a forged cheque in the sum of $1 million to an investment adviser, purportedly on behalf of a client. Documents were found by police indicating that applicant & 4 other persons were to divide the proceeds between them. Applicant apparently was to receive $50,000.
Aged 30 at time of trial - born in Korea - strong family unit with good work ethic - family support - good student with above average results - attended TAFE - worked for financial consultancy firms - self-employed at time of offence.
Whether CCA has jurisdiction to determine matter - specific question was whether the original order by the sentencing judge was subsumed in the revocation order made by the Parole Board, & accordingly no longer in force.
Application for extension of time refused.
252

BAKER, Allan - CCA, 14.6.2002 - 130 A Crim R 417
Ipp AJA, Dunford & Bergin JJ
Citation: R v Baker [2002] NSWCCA 184
Appeal against refusal to redetermine life sentence (see R v Baker [2001] NSWSC 412).
1 x murder; 1 x conspire to murder; 2 x malicious wounding with intent to prevent lawful apprehension.
In November 1973 a man parked his car near a rest area & fell asleep, curled up on the front seat. Appellant & his co-offender (Crump) were short of petrol & money. They approached the man's vehicle with the intention of robbing him. Appellant banged on the car door, the man sat up & appellant shot him in the throat. Appellant & Crump drove the body & the MV to an isolated area some distance away & abandoned the body & the vehicle. Four days later, appellant & Crump began surveillance of a farm where appellant had previously been employed. Once the farmer had left the property, they gained entry to the homestead, overpowered the farmer's wife & bound & gagged her. They ransacked the house & removed 2 rifles & some other items. They carried the victim to her husband's car & drove with her to a vehicle they had stolen. There they both raped her. They then drove the car until they crossed the Queensland border where they stopped. Both men again raped the victim. The victim was then blindfolded & Crump shot her. The 2 counts of malicious wounding with intent to prevent lawful apprehension arose when police apprehended appellant and Crump and the 2 offenders shot at the police.
Whether application of wrong test for establishing "special reasons" pursuant to s 13A(3A) - meaning of "special reasons'- whether 'special reasons'too difficult to establish - whether legislation covering a small class of people is invalid - principles - rehabilitation simpliciter.
Appeal dismissed.
253

COOK, Charlinn McCulloch - CCA, 12.6.2002
Adams J, Blanch AJ
Citation: R v Cook [2002] NSWCCA 240
Sentence appeal.
Knowingly take part in manufacture of prohibited drug (pseudoephedrine, 299.6 grams).
3y with NPP of 1y (special circumstances found).
Police executed a search warrant at premises which were being used to manufacture pseudoephedrine. The manufacturing operation, which involved the applicant, was significant, showing a high degree of organisation & had been going on for a significant period of time.
'Tragic' upbringing & background - did not know natural father - mother & step-father both heroin users & jailed when applicant a young child - step-father died from liver & kidney failure related to heroin use - applicant had to act as mother to her siblings - 2 of her aunts were drug users & died of AIDS-related illnesses - applicant has 5 children ranging in age from 2 to 17 years.
Guilty plea at first opportunity - first custodial sentence - hardship to children - regular drug & alcohol, psychology & welfare counselling - regular clean urine analysis tests - whether suitable for PD or home detention.
Appeal dismissed.
254

AKARI, Jean - CCA, 17.6.2002
Spigelman CJ, Simpson J, Blanch AJ
Citation: R v Akari [2002] NSWCCA 253
Sentence appeal.
2 x attempt armed robbery; 1 x armed robbery; 1 x aid & abet armed robbery.
Total of 7y with NPP of 5y.
Above offences were committed within a very short period of time, the 2nd being 5 minutes after the 1st, the 3rd 10 minutes after that & the 4th about 10 minutes later.
Appellant & a female co-offender drove around in a car, then would pull over & ask passers-by for directions. A gun would be produced & demands made for victims' wallets/bag. At times the appellant was in the driver's seat & at other times the female accomplice was in that seat.
Aged 18 at time of offences - history of drug use - attempts to address drug problem - significant support from family & friends - prospects of rehabilitation good.
Whether adequate weight given to special circumstances - whether failure to give weight to mitigating subjective features - whether sentences excessive.
Appeal dismissed.
255

MacFARLANE, Adam - CCA, 21.6.2002
Greg James J, Smart AJ
Citation: R v MacFarlane [2002] NSWCCA 250
Sentence appeal.
Count 1: BE&S - 3y with NPP of 15m (cumulative upon sentence on count 3);
Count 2: Assault - 9m FT (concurrent with sentence on count 1);
Count 3: Steal - 1*y FT;
Count 4: 12m FT (concurrent with sentence on count 3).
Applicant broke into an office at the Student Union store in Broadway & stole a leather wallet. He assaulted the owner of the wallet. Some 12 days earlier, he had stolen a lady's wallet & assaulted a security guard. Two security guards claimed applicant produced a capped bloodstained syringe & said they felt threatened by it, however, when asked to drop the syringe, the applicant put it on the ground. A shopkeeper who witnessed the incident said that the applicant only produced the syringe in response to a request by the guards & that he laid the syringe on the ground almost immediately.
Aged 22 at time of offences - Aboriginal ancestry - on parole at the time - prior criminal record going back to when aged 16 - previous imprisonment.
Guilty plea - only received 10% for utilitarian value - deprived childhood & upbringing - drug addiction - willingness to undergo appropriate strict regimen of drug rehabilitation - totality.
Appeal allowed in part: count 1 - resentenced to 2*y with NPP of 6m; count 2 - resentenced to FT 6m.
Appeal on counts 3 & 4 dismissed.
256

PEARSON, Mark - CCA, 12.6.2002
Adams J, Blanch AJ
Citation: R v Pearson [2002] NSWCCA 256
Application for extension of time to appeal against sentence.
Armed robbery; + some minor drug matters on a Form 1.
4y with NPP of 2y 3m.
Applicant, armed with a small vegetable knife, entered a newsagency wearing a piece of material over his head similar to a balaclava but without eye or mouth holes. He demanded that the 59 year old female victim open the till, which she did, whereupon he took money from the cash register drawer. The victim recognised the applicant's voice, having had previous contact with him. Applicant ran from the shop & was pursued by a taxi driver who eventually caught up with him & retrieved the money. Applicant escaped & was arrested 8 days later.
Guilty plea - some priors in the early 80's, none for violence - sad upbringing - living on streets at age 14 - drug dependence - fragile sense of self-worth - depression - need for rehabilitation.
Whether sentence excessive.
Application for leave to appeal refused.
257

BARTON, Kevin - CCA, 14.6.2002
Adams J, Blanch AJ
Citation: R v Barton [2002] NSWCCA 233
Sentence appeal.
Escape.
12m FT (cumulative upon sentence already being served).
At the time of escape, applicant was serving a sentence for an offence of B&E with intent to commit a felony. That sentence had been imposed by the CCA following a successful appeal by the Crown.
Intellectual disability - at large very short time - no offences committed whilst at large - no damage or injury during course of escape - escaped alone - apprehension relatively easy - guilty plea - protective custody.
Appeal allowed: sentence reduced to 3m FT.
259

WRC - CCA, 7.6.2002 - 130 A Crim R 89
Hodgson JA, Greg James & Kirby JJ
Citation: R v WRC [2002] NSWCCA 210
Two conviction appeals.
1st trial: 4 x indecent assault upon male person - total of 3*y with NPP of 2y 4m.
2nd trial: 7 x indecent assault upon male person - total of 4*y with NPP of 3y (cumulative upon sentence received for offences in 1st trial).
Offences in the 1st trial were purported to have occurred between January & June 1977, offences in the 2nd trial between February 1978 & January 1979. Appellant was a teacher at Mosman Preparatory School. He joined the Army Reserve in 1965. In 1977 & 1978, he was a Lieutenant & reserve Quartermaster at the Lancer Barracks at Parramatta. He took the 1st trial complainant to the barracks on at least 3 occasions. The 2nd trial complainant was taken to the barracks on about 2 occasions. The 2nd trial complainant made complaint one week after the last alleged assault upon him, however, appellant denied any wrongdoing & subsequently resigned from the school. No other complaint was made by either complainant until some years later. Appellant was interviewed by police in March 1997 & was subsequently arrested.
Circumstantial evidence - coincidence, tendency, relationship evidence - probative value and prejudicial effect - contamination - Longman direction - whether necessary - whether adequate - Rule 4.
Both appeals upheld: new trial ordered in each case.
260

CHAN, Alex (aka Victor CHAN) - CCA, 7.6.2002 - 131 A Crim R 66
Hodgson JA, Levine J, Smart AJ
Citation: R v Chan [2002] NSWCCA 217
Conviction and sentence appeal.
Knowingly concerned in the importation of commercial quantity heroin.
20y with NPP of 15y.
Appellant was to purchase heroin being brought to Australia from Thailand. Arrangements had been made between appellant & a man in Thailand who was involved in organising the movement of the heroin from Thailand to Australia. The bulk quantity of heroin imported was slightly in excess of 3.4 kgs. The NCA had dealings with a registered informant who tipped them off about the pending importation of the heroin.
Warnings - evidence of a kind that may be unreliable - relationship evidence - not admitted as tendency evidence - probative value & prejudicial effect - elements of offence - adequacy of directions - pre-sentence custody not taken into account.
Conviction appeal dismissed.
Sentence appeal allowed in part: 20y confirmed, NPP reduced to 13*y, commencement date varied.
261

TO, Quoc Vinh - CCA, 26.6.2002
Sheller JA, Barr & Greg James JJ
Citation: R v To [2002] NSWCCA 252
Conviction and sentence appeal.
1 x sexual intercourse without consent; 4 x sexual intercourse without consent (person under 16); 5 x aggravated sexual intercourse without consent.
Total of 27y with a NPP of 20y (there were 3 accumulations of penalty).
Offences were committed upon 4 complainants, count one related to an adult, counts 2-5 to a 12 year old complainant, counts 6&7 an adult complainant in circumstances involving the threat of ABH with offensive weapon (knife), and counts 8-10 another adult complainant in circumstances involving the threat of ABH with an offensive weapon (knife).
Identification - DNA evidence - coincidence or similarity - evidence on some counts admissible on all - evidence direct on some counts, on others circumstantial - directions - whether miscarriage - whether sentence excessive.
Appeal dismissed.
262

HAYES, Scott Warren - CCA, 18.6.2002
Dunford & Adams JJ
Citation: R v Hayes [2002] NSWCCA 237
Sentence appeal.
Armed robbery.
4y with NPP of 3y.
Armed with a blood-filled syringe, applicant entered a service station & demanded money from the console operator. The operator handed $300 to the applicant, who quickly left the shop & escaped in the motor vehicle which was driven by a co-offender.
Aged 25 at time of offence - guilty plea - assistance to authorities - no priors - unemployed at time of offence - heroin addict - general deterrence - protection of the community.
Whether sentence excessive.
Appeal allowed: resentenced to 3y 4m with NPP of 2y 2m.
263

F - CCA, 9.4.2002 - 129 A Crim R 126
Meagher JA, Wood CJ at CL, Bell J
Citation: R v F [2002] NSWCCA 125
Crown appeal pursuant to s.5F Criminal Appeal Act 1912 against order for separate trials.
Respondent initially charged with indecent assault of 5 former pupils at a school where he was the gym master. He was committed for trial. Following representations by the solicitors for the respondent, the Crown consented to presenting individual indictments so that the charges involving the 5 complainants could be heard separately. The matters were set down as back-to-back trials. The Crown later sought joint trials. As the matter was dealt with by way of consent, no formal order was made for separation of the trials. The Crown subsequently served notices under ss.97 & 98 Evidence Act, giving notice of its intention to rely upon the evidence of each complainant as tendency & coincidence evidence.
Evidence - admissibility - tendency, coincidence - evidence of similar offences with other victims - possibility of concoction - complainants at same school, but of different ages with no reason to socialise together - joinder of counts or severance of counts.
Crown appeal dismissed.
264

CHRISTIAN, Alex John - CCA, 19.6.2002
Spigelman CJ, Simpson J, Blanch AJ
Citation: R v Christian [2002] NSWCCA 264
Crown appeal.
2 x robbery; + Form 1 matters (robbery; demand money with intent to steal).
Total of 3y 2m with NPP of 2y.
The 1st offence related to a robbery of a TAB agency. The victim in this robbery thought she saw a black gun under the respondent's T-shirt. The 2nd offence related to a robbery of a video store, during which respondent told the 2 women in the store that he had a gun in his jacket.
Aged 44 years - Aborigine - extensive history of drug abuse (heroin, cocaine, cannabis) - chronic depressive illness - long criminal history going back to when aged 14 - previous imprisonment.
Whether manifestly inadequate.
Appeal allowed: resentenced to total of 4y with NPP of 2y.
265

REARDON, Michael Leonard - CCA, 4.6.2002
MICHAELS, Edgar Hernando
TAYLOR, Clifford Barry
Hodgson JA, Simpson & Barr JJ
Citation: R v Reardon, Michaels and Taylor [2002] NSWCCA 203
Conviction and sentence appeal.
Conspire to import commercial quantity cocaine.
Reardon: 17y 11m with NPP of 14y; Michaels: 20y with NPP of 16y; Taylor: 12y with NPP of 10y.
Each appellant entered a plea of not guilty & the matter proceeded to trial. The quantity of cocaine alleged by the Crown to have been the subject of the offence was 50 kgs. During the trial, a juror became ill & was discharged. The trial proceeded with 11 jurors who returned a guilty verdict against each appellant.
Whether trial lawful in absence of juror - whether discretion miscarried - whether sentence excessive.
Conviction appeal dismissed.
Sentence appeal allowed. Resentenced as follows: Reardon - 17y 11m with NPP of 12y; Michaels - 18y with NPP of 13y; Taylor - 12y with NPP of 8y.
266

HAMMOUD, Hussein - CCA, 21.6.2002
Greg James J, Smart AJ
Citation: R v Hammoud [2002] NSWCCA 254
Sentence appeal.
1 x supply prohibited drug (cocaine); 1 x robbery in company; + Form 1 offences (2 x supply cocaine).
Total of 9y 8m 19d with NPP of 5y 8m 19d.
The robbery in company involved applicant & 2 co-offenders robbing a branch of Westpac Bank. Evidence was tendered at trial which showed that applicant's right palm print was found on the black countertop near the inside edge on the teller's side of the counter. Applicant was arrested a little more than 6 months previously on the drug offences & remained in custody for 195 days, having entered a plea of guilty some weeks after arrest. He later absconded & 7 months later was arrested & charged with robbery in company.
Aged 24 at time of robbery in company - priors, starting at age 17 - received bonds, fined, 1 month imprisonment - bullied at school - sporadic employment since, mainly in family take-away business - unemployed & not receiving unemployment benefits - drug habit, exceeding cost of $4,000 per day - attempts at rehabilitation, brief stay at William Booth Institute, self-detoxification.
Totality.
Appeal allowed: resentenced to total of 6y 2m 19d with NPP of 3y 8m 19d.
267

GEA - CCA, 3.6.2002 - 131 A Crim R 54
Heydon JA, Hidden J, Blanch AJ
Citation: R v GEA [2002] NSWCCA 222
Conviction and sentence appeal.
1 x attempt homosexual intercourse; 2 x act of gross indecency with male person.
Sentence not stated.
Appellant was complainant's stepfather. The 1st offence alleged to have occurred in 1986, the last in early 1992. No complaint was made until 1997 when the complainant complained to his mother. The complaint to police was made in 1998. This was a second trial, there having been an earlier trial in which the jury acquitted on some counts but was unable to agree on others. Already served some 15 months of sentence.
Delay in complaint - adequacy of warning - Longman; Crampton; Doggett; R v BWT [2002] NSWCCA 60.
Appeal allowed: new trial ordered.
268

BEVAN, Lisa - CCA, 16.4.2002
Mason P, Barr & McClellan JJ
Citation: R v Bevan [2002] NSWCCA 224
Conviction appeal.
1 x ongoing supply of prohibited drug (methylamphetamine); 1 x deemed supply methylamphetamine.
This was a strong Crown case. There was evidence of controlled undercover drug operations in which 2 undercover police officers participated in controlled purchases from the appellant. Their evidence was supported by listening device material in relation to the ongoing supply charge. The appellant sought to place exculpatory explanations upon the intercepted conversations which the jury did not accept. Police executed a search warrant upon appellant's home which she shared with her de facto husband & her children. Police said it appeared appellant had been trying to hide something. Her hand was forced open to reveal a small ball of plastic wrap, the contents of which were analysed & found to contain some cannabis leaf. In the kitchen, they found a plastic snaplock bag containing white powder. There was also equipment associated with drug supply, as well as bundles of $50 notes & a bank withdrawal slip showing a balance of $3,303. Appellant said the money she & her partner had amassed was from poker machines. During the trial, the Crown prosecutor raised questions about the amount of money appellant & her de facto had put through poker machines at the Bathurst RSL Club. He had a document which revealed that $43,087.52 & $52,671.10 had been put through the machines.
Matters brought into evidence not relating to charges - error in declining to give direction - breach of s.44 Evidence Act - improper cross-examination - wrongful refusal to discharge jury - whether miscarriage.
Appeal allowed: new trial ordered.
269

MABBOTT, Leanne Patricia - NSW SC, Hidden J, 11.6.2002
Citation: R v Mabbott [2002] NSWSC 502
Remarks on Sentence.
Manslaughter.
Offender was charged with murder, however, the Crown accepted her plea of guilty to manslaughter on the basis of substantial impairment by abnormality of mind.
The offender & deceased, who were in a de facto relationship, were at the deceased's home, having drinks with some friends. When the friends left in the mid-evening, the deceased went to bed & the offender cooked a meal & then ate it. The offender said that the deceased came in from the bedroom & the offender asked if he wanted dinner, whereupon she claimed the deceased seized her, threw her to the floor & called her a 'dog'When she got up he pushed her back down. The offender said her next recollection was seeing the deceased standing, bleeding & holding his hand to his neck. She called the 000 emergency line. The deceased went into the bedroom where he collapsed. The offender wrapped him in a doona then went to the friends' home & told them that she had killed the deceased. Offender & the friends returned to the deceased's home & police were summoned.
Aged 35 at time of offence - fairly lengthy criminal record, commencing at age 17 - previous imprisonment - alcohol & drug abuse - extremely chaotic lifestyle - psychiatric evidence.
Sentenced to 7y with NPP of 3*y.
270

OLIG, Shane - CCA, 16.4.2002
Mason P, Barr & McClellan JJ
Citation: R v Olig [2002] NSWCCA 249
Conviction and sentence appeal.
Manslaughter.
12y with NPP of 8y.
Appellant & deceased had separated some months prior to the date of the offence, having been in a domestic relationship for a number of years. On the day of the offence, appellant went to deceased's house with a can of petrol & set fire to the house then quickly drove away. The deceased's body was later found in the kitchen. Medical evidence established she died of smoke inhalation. Appellant had been charged with murder. An alternative verdict of manslaughter was left to the jury on the basis of unlawful & dangerous act causing the death of the deceased.
Appellant appeared in person on appeal.
Summing up - whether errors made - directions - whether tape-recorded evidence wrongly admitted - complaints made about conduct of defence counsel - accusations that lies told by police - failure of defence counsel to make use of what appellant claimed to have been a suicide letter written by deceased - whether sentence excessive.
Appeal dismissed.
271

QVT - CCA, 26.6.2002 - 131 A Crim R 264
Sheller JA, Barr & Greg James JJ
Citation: R v QVT [2002] NSWCCA 247
Conviction and sentence appeal.
4 x sexual intercourse without consent in circumstances of aggravation.
23y with NPP of 16y.
In each case, the circumstances of aggravation were that the appellant threatened to inflict ABH by means of a knife. There were 3 complainants. Two offences were committed upon the same complainant, the 2nd being some 25 days after the 1st offence.
Error in admitting evidence of identification - failure to withdraw - identification parade - visual identification - DNA evidence - whether appropriate database used.
Appeal dismissed.
272

ISRAIL, Mohammed - CCA, 19.6.2002
Spigelman CJ, Simpson J, Blanch AJ
Citation: R v Israil [2002] NSWCCA 255
Crown appeal.
1 x robbery armed with offensive weapon (blood-filled syringe); 1 x attempt armed robbery with offensive weapon (mock rifle); + 2 Form 1 offences (demand money with menaces, armed robbery).
2y suspended sentence.
Respondent had spent a week short of 8 months in custody prior to sentencing. There was considerable delay in bringing him to trial due to the issue of his fitness to plead. Bail was subsequently granted on strict terms, including respondent attending for psychiatric treatment.
The victims of all the offences were shopkeepers of small shops. Although threats were made in the production of weapons, there was no actual violence involved.
Guilty plea - serious mental illness - delusional conduct when very young - increased abnormality from age 16 - psychotic symptoms - auditory hallucinations - schizophrenia - several admissions to psychiatric hospitals - drug addiction - good prospects of rehabilitation.
Whether sentence inadequate.
Appeal dismissed.
273

CHEN, Wei Ming - CCA, 11.6.2002 - 130 A Crim R 300
SIREGAR, Saud
ISMUNANDAR, Sidiki
LAU, Khong Hoi
Heydon JA, Sully & Levine JJ
Citation: R v Chen & Others [2002] NSWCCA 174
Conviction and sentence appeals.
Knowingly concerned in importation of commercial quantity heroin.
Chen - life; Siregar - life with NPP of 20y; Ismunandar - life with NPP of 20y; Lau - life.
A speedboat carrying 31 duffel bags packed with 253.3 kgs pure heroin was launched from a larger vessel in international waters & landed on a beach near Port Macquarie. Upon reaching shore, the occupants of the speedboat & the shore-based support group were arrested. The remaining crew on the larger vessel were also arrested. There was evidence that Chen accompanied the heroin onto the vessel, unpacked it from sacks into the duffel bags & then accompanied it on the speed boat. Upon arrest, he was found to be in possession of a semi-automatic pistol & a false passport. Lau was involved to a high degree. He arranged & accompanied the collection & delivery of the heroin. Ismunandar was the chief officer & Siregar was the chief engineer of the larger vessel. (See also Chan - CCA, 19.3.2002; Mandagi - CCA, 11.3.2002.)
Jurisdiction - inherent powers - acts of Commonwealth marine vessel in pursuit of appellants' vessel - pursuit of compulsive nature - whether nature of pursuit deprived court of jurisdiction - whether proceedings an abuse of process - judicial powers - s.71 Constitution Act 1901 (Imp) - whether power of DPP under s.21E Crimes Act 1914 (Cth) to apply to court for increase of sentence an exercise of Commonwealth judicial power.
Admissibility of evidence - s.138 Evidence Act 1995 (NSW) - discretion to exclude illegally or improperly obtained evidence - whether seizure and search of marine vessel within Australian waters unlawful or irregular - whether admission of evidence a miscarriage of discretion - s.102 Evidence Act 1995 (NSW) - whether evidence of undertaking relevant only to a witness' credibility - evidence of witness' status.
Chen & Lau - Conviction appeals dismissed. Sentence appeals dismissed.
Siregar & Ismunandar - Conviction appeals dismissed. Applications for leave to appeal against sentence adjourned.
274

LULHAM, Dean Richard - CCA, 21.6.2002
Spigelman CJ, Simpson J, Blanch AJ
Citation: R v Lulham [2002] NSWCCA 262
Sentence appeal.
Murder.
18y with NPP of 13*y.
Deceased & his girlfriend were camping on a riverbank, when accused shot deceased in the head as he & his girlfriend lay asleep on a mattress.
Previous incidents between accused & deceased - applicant & co-offenders intoxicated at time of offence.
Average intelligence with psychological assessment ranging from above average down to severely impaired - learning & speed of cognitive processing at lower level - memory poor - brain dysfunction with notable deficits leading to thought processes of a disorganised kind - confused & incompetent in discriminating correct from incorrect information.
Guilty plea - aged 34 at time of offence.
Weight given to guilty plea - culpability - circumstances of protective custody.
Appeal dismissed.
275

AHMAD, Kevin - CCA, 21.6.2002
Spigelman CJ, Simpson J, Blanch AJ
Citation: R v Ahmad [2002] NSWCCA 265
Conviction appeal.
1 x armed robbery; 1 x steal MV.
The armed rob offence occurred at the McDonald's restaurant at Casula, the steal MV at Liverpool.
The Crown case consisted of evidence from 2 identification witnesses, as well as other evidence tendered. Witnesses were shown 14 photographs, one being of the accused. The male witness pointed to the photograph of the accused, stating 'That looks more like him'A female witness was shown 14 photographs. She selected 2 photographs, saying 'I am not sure but these two photographs are similar to the man'When asked what features reminded her of the man, she said 'Below the nose, the mouth particularly. The shape of the mouth.'When asked what percentage each of the photographs looked like the man who committed the offence, she said about 50%.
Identification - circumstantial evidence - 'unsafe & unsatisfactory'.
Appeal allowed: verdicts of acquittal entered on both counts.
276

POWER, Heather Kathleen - CCA, 19.6.2002
Greg James J, Smart AJ
Citation: R v Power [2002] NSWCCA 244
Sentence appeal.
39 x make false instrument.
8y with NPP of 5y.
Major fraud. The making of the false instruments resulted in applicant's employer (National Bank of Australia) being defrauded of large sums of money. The offences commenced in October 1996 & continued until October 2000. Applicant held the middle-management position of Personal Banker at a branch of the bank & had authority to approve loans. She created a number of fictitious loans with fictitious customers. She entered false details into the NAB computer system which satisfied the bank's requirements. On most occasions, she drew funds by obtaining bank cheques in the amounts nominated by her. While the total amount defrauded was about $7.681 million, some of the fictitious loans were used to repay earlier fictitious loans. The actual amount which applicant used for herself was $5.81 million, which she spent on jewellery, art, furnishings, wine & luxury living. A significant proportion of the property obtained with the stolen money was recovered , however, re-selling of those items fetched well below the prices originally paid for them. Some of the jewellery had been sold to the applicant at highly inflated prices. There was some suggestion that the applicant was having more than a business relationship with a jeweller.
Aged 40 at time of 1st offence - prior good character - unlikely to re-offend - less weight placed on general deterrence.
Early guilty plea - utilitarian value - contrition - co-operation - special circumstances - whether sentence excessive.
Appeal allowed in part: resentenced to total of 8y with NPP of 4y.
277

KERR, Nathan Anthony Dixon - NSW SC, Barr J, 12.4.2002
Citation: R v Kerr [2002] NSWSC 309
Judgement.
Murder.
Trial by judge alone. Accused pleaded not guilty by reason of the fact that at the time of the events giving rise to the charge, he was mentally ill & therefore not legally responsible for his actions.
Accused beat deceased repeatedly over the head with a torch, then stabbed her. Psychiatric evidence that accused's abnormality of mind at time of offence was an acute exacerbation of schizophrenia.
Aged 21 at time of offence - drug use - hallucinations, voices - erratic thought processes, delusions of control - 'dark thoughts'- schizophrenia - exacerbated by drug use - thoughts of suicide.
Whether a special defence of not guilty by reason of mental illness made out.
Verdict of not guilty on the grounds of mental illness. To be detained in psychiatric ward of hospital at Long Bay Correctional Centre until released by due process of the law.
278

CHASE, Roger - CCA, 3.6.2002
Heydon JA, Hidden J, Blanch AJ
Citation: R v Chase [2002] NSWCCA 231
Crown appeal.
A series of robbery offences: robbery, aggravated robbery, armed robbery.
Total sentence of 6y with NPP of 4*y (special circumstances found).
Offences related largely to robbery & aggravated robbery on railway stations in company with other people. There was a degree of violence in some of them. Taken into account on a Form 1, were charges of robbery in company, demand money with menaces, goods in custody, common assault.
Aged 19 at time of offences - dysfunctional background - drug addiction - indication of some community support.
Parity - whether sentence inadequate.
Appeal dismissed.
279

KNIGHT, Travis Lawrence - CCA, 28.6.2002
Hidden & Kirby JJ
Citation: Knight v Regina [2002] NSWCCA 12
Sentence appeal.
1 x armed robbery; + Form 1 offence (possess heroin) taken into account.
5y 3m with NPP of 3y.
In the early hours of the morning, applicant went to the home of his girlfriend's parents, armed with a knife, carrying a torch & wearing a balaclava over his head. He turned off the electricity then entered the house through an unlocked door. He went to the parents' bedroom & demanded money, attempting to disguise his voice. He told the female victim he wanted her bag & menaced both parents with the knife. The female victim realised who he was & remonstrated with him, however, applicant insisted he was serious about being given the bag. He eventually found it & ran from the house. He drove to Sydney with his girlfriend & 2 other people, where he obtained some heroin & used it. He was arrested soon after in a motel room where police found a small amount of heroin the subject of the Form 1 offence. The bag contained cash in excess of $5,000, which was a great deal more than the applicant had expected. He showed police where the money was & it was recovered. Applicant made full admissions & pleaded guilty in the LC.
Guilty plea - remorse - drug dependence - genuine desire to rehabilitate - offence committed in private home - Henry considered.
Whether sentence manifestly excessive - Campbell [2000] NSWCCA 157 referred to.
Appeal dismissed.
280

MURRAY - HC, 20.6.2002 - 211 CLR 193; 76 ALJR 899
Citation: Murray v The Queen [2002] HCA 26 (20 June 2002)
Murder.
Deceased died from gun shot wounds to the chest. Appellant was holding the shotgun at the time. Both barrels were discharged but the weapon was faulty & prone to sympathetic discharge of the 2nd barrel upon the 1st barrel discharging.
Unwilled acts and accidents under the Criminal Code of Queensland.
Whether shooting was an unwilled act or an event occurring by accident - whether trial judge erred in failing to direct jury about unwilled acts - whether open to the jury to decide what is 'the act causing death'- whether trial judge's failure to direct jury gave rise to substantial miscarriage of justice.
Ryan(1967) 121 CLR 205.
Appeal allowed: new trial ordered.
281

RA, James Gey-Houn - CCA, 18.6.2002 - 131 A Crim R 133
Spigelman CJ, O'Keefe & Simpson JJ
Citation: R v Ra [2002] NSWCCA 251
Sentence appeal.
Knowingly concerned in the importation of commercial quantity heroin.
15y with NPP of 10y.
The heroin was imported into Australia concealed in 4 ornamental stone columns, which had been consigned from Hong Kong & were packed in 4 crates. The quantity of heroin imported had a gross weight of 10 kgs, 5.689 kgs being pure heroin with a street value in excess of $11 million. The amount imported was slightly in excess of 5 times the minimum commercial quantity.
Guilty plea - major participant in venture.
Whether error in sentencing judge finding applicant did not fit profile of offender dealt with in Wong and Leung - whether applicant should have been dealt with on basis analogous to that of courier, albeit not a 'mere courier'- whether inadequate weight placed on utilitarian value of guilty plea - whether sentence manifestly excessive.
Appeal dismissed.
282

UGLE - HC, 20.6.2002 - 211 CLR 171; 76 ALJR 886
Citation: Ugle v The Queen [2002] HCA 25 (20 June 2002)
Murder.
Deceased died from a knife wound to the chest.
This case deals with the question of unwilled acts and accidents under the Criminal Code of Western Australia. Accused said he did not mean to do the deed (knife accidentally stabbed).
Whether stabbing an unwilled act - whether trial judge erred in failing to direct jury about unwilled acts - whether trial judge's failure to direct jury gave rise to substantial miscarriage of justice.
Ryan(1967) 121 CLR 205.
Appeal allowed: new trial ordered.
283

GRANT, Robert John - CCA, 8.7.2002 - 55 NSWLR 80; 131 A Crim R 510
Spigelman CJ, Wood CJ at CL, Kirby J
Citation: R v Grant [2002] NSWCCA 243
Conviction and sentence appeals.
Count 1: murder - 18y with NPP of 13y;
Count 2: shoot with intent to murder - 5y FT (concurrent).
Crown case was that, whilst carrying a rifle, appellant approached a group of men at the rear of a utility parked in a carpark. He shot & killed one of the men from a distance of 20-25 feet, then chased another man around the utility, pointing the gun at him. A 2nd shot was fired & the man was able to escape to a nearby bottle shop. Appellant was heavily intoxicated at the time. He was aged 43 at time of offences.
Intoxication - directions - reckless indifference to human life - whether an offence of specific intent under part 11A Crimes Act - application of the proviso - whether verdict unreasonable - whether jury should have entertained reasonable doubt - whether miscarriage of justice - uncertainty or inconsistency in evidence.
Conviction appeal on count 1 allowed: new trial ordered.
Conviction & sentence appeal on count 2 dismissed.
284

CHENG, Josephine - CCA, 17.6.2002
Adams J, Carruthers AJ
Citation: R v Cheng [2002] NSWCCA 225
Sentence appeal.
Conspiracy to supply large commercial quantity heroin.
14y with NPP of 8y.
Appellant made phone calls, ordering various amounts of heroin, arranging meetings, deliveries & payment between suppliers & couriers. The amount of drug sold over several transactions totalled approximately 2 kgs. Appellant's role in the enterprise described as being middle management.
Aged 28 - born in Malaysia - came to Australia aged 13 - obtained HSC - went on to university - classified as 'middle management'in drug enterprise - gambling habit - supportive family - no priors.
Whether sentence manifestly excessive - on parole at the time of offences.
Appeal allowed: resentenced to 12y with NPP of 7y.
285

McNAMARA, Noel - CCA, 21.6.2002 - 131 A Crim R 140
Spigelman CJ, Simpson J, Blanch AJ
Citation: R v McNamara [2002] NSWCCA 248
Conviction appeal.
1 x sexual intercourse without consent - 4*y with NPP of 3y 5m;
1 x assault (common) - 9m FT (concurrent).
Appellant was also charged with detain with intent to hold for advantage, however, the jury returned a verdict of not guilty on that count. Appellant had formed a relationship with the victim & they had 2 children together. They separated after a period of violence. The assault offence arose when, instead of driving the victim to her home, the appellant drove her to a reserve & assaulted her. He punched her in the chest, pulled her hair & kicked her. On another occasion, appellant beat the victim then forced her to have sexual intercourse with him.
Relationship evidence - distress - warnings - evidence of prior conduct, including convictions, admitted - whether error in directions - whether miscarriage of justice.
Appeal allowed: new trial ordered.
286

MARTIN, Gerard Thomas - NSW SC, Barr J, 18.6.2002
Citation: R v Martin [2002] NSWSC 577
Remarks on Sentence.
Murder.
The offender violently assaulted the deceased, causing her death. Offender & deceased were in a de facto relationship. Offender had previously been charged with assaults upon the deceased. Evidence was led that offender intended killing the deceased.
Aged 23 - guilty plea - Aboriginal - deprived upbringing - experienced violence, cruelty, hopelessness during formative years - at age of 7 was sexually abused by a health worker - alcohol problem - cannabis use - poor self-esteem - feelings of insecurity & inadequacy - low-average range of intellectual capacity - priors - previous imprisonment.
Fears of retribution from deceased's family, some of whom are in the prison system - need for protection.
Sentenced to 16y with NPP of 12y.
287

FISH, Christine Gay - CCA, 14.6.2002 - 131 A Crim R 172
SWAN, John Gordon
Ipp AJA, Dunford & Bell JJ
Citation: R v Fish and Swan [2002] NSWCCA 196
Conviction and sentence appeal.
A brawl took place at Kings Cross which involved off-duty police officers. Fish made a false statement on oath at the trial of one of the men charged as a result of the brawl. Swan made a false statement on oath at the committal proceedings & at the trial of the same person. Appellants were charged with a number of other counts, but were found not guilty on those counts.
Fish: 1 x perjury - 20m with NPP of 12m.
Aged 28 at time of offence - unblemished work record as police officer with 2 commendations - difficult home life - 1st husband a violent alcoholic - separated from 2nd husband who has psychiatric problem - depression - on protection - insignificant priors.
False statement ambiguous - insufficient evidence to establish it was false - conviction unsafe and dangerous - guilty verdict of perjury inconsistent with verdict of not guilty on other counts - whether sentence excessive.
Conviction appeal dismissed; sentence appeal allowed - resentenced to total of 20m with NPP of 6m.
Swan: 2 x perjury - 20m with NPP of 12m (consecutive).
Aged 41 at time of 1st offence - Vietnam veteran - several commendations during 21 years in police force - community service work - post-traumatic stress disorder - ischaemic heart disease - undergone 2 heart operations - on protection - suicide risk - no priors.
Conviction unsafe and dangerous - guilty verdict of perjury inconsistent with verdict of not guilty on other counts - whether sentence excessive.
Conviction appeal dismissed; sentence appeal allowed - resentenced to total of 22m with NPP of 14m.
288

SUMEO, Falaniko - CCA, 27.6.2002
Smart & Blanch AJJ
Citation: R v Sumeo [2002] NSWCCA 271
Sentence appeal.
1 x robbery using corporal violence with infliction of GBH - FT 4y, commencing 23.9.2000;
1 x maliciously inflict GBH with intent to inflict GBH - 11y (commencing 23.9.2002) with NPP of 7y.
The above offences involved vicious, brutish attacks upon 2 separate victims, which left the victims with very serious injuries. In each case, the applicant stomped on the victim's head. The 1st victim was left with major facial fractures which required extensive surgery, with steel plates & screws having to be inserted into his cheeks. The 2nd victim suffered permanent brain damage as a result of his injuries. Once this victim had been rendered into an unconscious state, the applicant dumped him onto railway tracks. A man heard screaming, saw the incident & together with another male managed to remove the unconscious victim from the railway tracks. The next train was due some 4 minutes later, however, there was no evidence applicant knew of that.
Aged 22 at time of 1st offence - Samoan parents - eldest of 6 children - illiterate - problems with verbal communication - mildly intellectually retarded - alcohol abuse - heavily intoxicated at time of offences.
Whether sentences manifestly excessive.
Appeal dismissed.
289

PIGGOTT, Brendan James - CCA, 7.6.2002
GRIFFITHS, John Henry
SIMEON, Michael
Spigelman CJ, Barr & Bergin JJ
Citation: R v Piggott, Griffiths & Simeon [2002] NSWCCA 218
Conviction and sentence appeal.
Piggott: Knowingly take part in manufacture of commercial quantity prohibited drug (methcathinone) - 4y, NPP 3y; supply commercial quantity prohibited drug - 2y 9m FT (concurrent).
Griffiths: Knowingly take part in manufacture of commercial quantity prohibited drug (methcathinone) - 4y, NPP 3y.
Simeon: Knowingly take part in manufacture of commercial quantity prohibited drug (methcathinone) - 4y, NPP 3y; supply commercial quantity prohibited drug - 2y 9m FT (concurrent).
Over a period of 2 days, police made a video recording of the activities of the 3 appellants. On the 2nd day, Piggott & Simeon were arrested when leaving factory premises. Police found 7 bags of powder in their possession. Crown alleged the bags contained 979.1 grams of methcathinone. Issue on appeal was whether the powder in the bags contained methcathinone. Griffiths had purchased the chemicals & laboratory equipment & Simeon had taken a lease on the factory premises. On 3 occasions, the appellants had travelled from the factory premises to the wholesale chemical suppliers in a vehicle owned by Piggott.
Grossly unreliable drug identification by the Australian Government Analytical Laboratories.
Guilty verdict - whether unreasonable - whether unsupportable having regard to the evidence.
Appeal allowed: conviction quashed, verdicts of acquittal entered.
290

CROWE, Matthew Bruce - CCA, 20.6.2002
Dunford & Adams JJ
Citation: R v Crowe [2002] NSWCCA 245
Sentence appeal.
1 x aggravated BE&S; + Form 1 offences (possess cannabis).
6y with NPP of 4y.
Applicant & co-offender broke into a jewellery store in the early evening, using a sledge hammer, then entered the store through the smashed door. They approached staff wielding the sledge hammer. The staff ran to the rear of the store & locked themselves in the office. Applicant & his co-offender then ransacked the store & stole numerous items of jewellery, the total value of which was approximately $750,000. They made their getaway in a stolen MV which was driven by a 3rd offender. It was suggested applicant had been asked to mind $10,000 for a friend, however, he had spent part of it & gambled the rest in an effort to recover what he had spent. He told his father he only got $10,000 out of the burglary, although there was evidence from an intercepted telephone call of him receiving about $20,000.
Aged 24 at time of offence - completed HSC - employment - no evidence of family, social or financial deprivation - no drug problem - associate of criminal element - priors - previous imprisonment.
Whether sentence excessive.
Appeal dismissed.
291

WEBB, Daryl Raymond - NSW SC, Hulme J, 28.6.2002
Citation: R v Webb [2002] NSWSC 618
Remarks on Sentence.
Manslaughter.
A baby, just under 9 months old, died of intracranial injuries which a post-mortem revealed to be as a result of a non-accidental application of blunt force. The baby was in the sole care of the prisoner at the time. Prisoner was originally charged with murder, however, he later pleaded guilty to manslaughter. Whilst admitting his actions caused the death of the baby, he made no explanation as to the nature of his actions.
Aged almost 35 at time of offence - Aboriginal father, white mother - 'not unhappy'but 'unsettled'childhood - addiction to heroin at early age - claimed to have stopped heroin use by replacing it with amphetamines - priors as a juvenile (armed robberies) - imprisonment in juvenile detention centre for 2 years - sentenced to 12m recognizance for an offence of AOABH at age 31.
Sentenced to 7*y with NPP of 4*y.
292

BISHOP, Justin Steven - CCA, 21.6.2002
Greg James J, Smart AJ
Citation: R v Bishop [2002] NSWCCA 263
Sentence appeal.
3 x dangerous drive occasioning death; 2 x dangerous drive occasioning GBH.
6y with NPP of 3y.
The deaths of 3 teenagers & the very serious permanent injuries of 2 other teenagers arose out of a collision between the victims' car, which was travelling east along the Great Western Highway, & the applicant's car, which was travelling west on that highway. The victims' car was turning right at traffic lights at the intersection with Gipps Street when the applicant's car collided with it. Applicant was travelling at more than 100 kph in an 80 kph zone at the time.
Aged 21 at time of offences - good work record - good character references - prior record for driving offences - no previous imprisonment.
Whether sentence manifestly excessive.
Appeal dismissed.
293

HAEUSLER, Craig - CCA, 20.6.2002
Dunford & Adams JJ
Citation: R v Haeusler [2002] NSWCCA 246
Sentence appeal.
Manufacture large commercial quantity prohibited drug (methylamphetamine); supply large commercial quantity prohibited drug (methylamphetamine).
Total of 7y with NPP of 5y 3m.
The Crown argued there was a joint criminal enterprise between the applicant & his 2 co-offenders, as well as the owner of the premises where the drug activities took place & where the offenders were arrested. The owner of the premises was tried separately & subsequently sentenced to 7y with a NPP of 5y. One of the co-offenders was sentenced to 10y with a NPP of 7*y, the other to 6y with a NPP of 4*y.
Parts played by offenders - respective criminality - applicant assessed as a prime mover, whereas he had a lesser role - 30% discount given for assistance - parity - Postiglione referred to - comparative criminal histories.
Appeal allowed: resentenced to total of 6y with a NPP of 4*y.
294

MITCHELL, Nicholas Joseph - CCA, 2.7.2002
Handley JA, Dowd J, Smart AJ
Citation: R v Mitchell [2002] NSWCCA 270
Sentence appeal.
Supply commercial quantity heroin - 13y with NPP of 8y commencing 28.12.2000;
unauthorised possession of a firearm - 4y FT commencing 28.6.1999.
6 offences on a Form 1 were also taken into account.
No details of offences supplied.
Guilty plea - prior good character - poor health - special circumstances - statutory formula in s.44(2) Crimes (Sentencing Procedure) Act 1999 - parity - totality.
Appeal allowed in part: resentenced to 2y FT for unauthorised possession of a firearm.
295

CROSS, Edward Morgan - CCA, 15.5.2002
O'Keefe J, Smart AJ
Citation: R v Cross [2002] NSWCCA 172
Sentence appeal (extension of time).
Attempt robbery whilst armed with offensive weapon; + Form 1 offence (BE&S) - 6y with NPP of 2y 5m;
take & drive conveyance without consent of owner - FT 9m (concurrent).
The attempt rob offence involved applicant going into a newsagency armed with a syringe filled with red fluid which was presumed to be blood. He approached a female standing behind the sales counter & told her to put money in the plastic bag he had with him. The female yelled out her husband's name, whereupon the applicant ran from the shop without any proceeds. He then drove away in a car which had been stolen 2 weeks previously.
Guilty plea - prior good character - stable employment - rehabilitation - general deterrence - drug addiction - poor coping skills - only priors were for driving offences dealt with by way of fines.
Error in sentencing - sentence imposed for wrong offence - sentenced for armed rob, whereas should have been sentenced for attempt armed rob - application of guideline judgement for different offence - enlargement of term of sentence for purposes of extended parole - drug addiction - rehabilitation - special circumstances.
Appeal allowed in respect of attempt robbery charge: resentenced for that offence to 4y with NPP of 2y.
296

DROUBI, Richard - CCA, 18.6.2002
Dunford & Adams JJ
Citation: R v Droubi [2002] NSWCCA 269
Sentence appeal.
Supply cocaine; + offence on a Form 1 (supply cannabis) - 6y with NPP of 4y.
Applicant was found guilty of the above offence, however, the offence he committed was, in fact, an offer to supply cocaine. Police had intercepted a telephone call between the applicant & another man in which applicant had agreed to supply 4 ounces of cocaine for $4,200. He told the buyer he could supply 2 ounces immediately & the other 2 ounces later. Despite several follow-up telephone calls, the transaction never took place.
Upon arraignment, applicant had pleaded guilty to knowingly take part in supply of cocaine & knowingly take part in supply of methylamphetamine, however, the sentences for these offences were not stated in the judgment.
Aged 29 at time of sentence - good family relationship - drug dependence - objective seriousness - Wong & Leung - Judicial Commission statistics - sentence at top of range - subjective circumstances - first offence - changes made towards rehabilitation - family support.
Whether sentence manifestly excessive.
Appeal allowed in part: resentenced to 5y with NPP of 3y 3m for the supply cocaine + Form 1 matter.
297

ELPHICK, Eric John - CCA, 2.7.2002
Handley JA, Dowd J, Smart AJ
Citation: R v Elphick [2002] NSWCCA 273
Sentence appeal.
Murder.
15y with NPP of 12y.
Accused & deceased involved in a domestic relationship of co-dependency for over 2 years. Deceased was a drug addict. Accused tried to get her off drugs but she refused. She stole money & goods from him & either sold or pawned them. She resorted to prostitution to obtain money. There was evidence that there was some physical violence in the relationship. Accused provided her with a ticket & money to visit his family at Christmas but she did not go. On his return to Sydney, accused sought her out in Kings Cross & became agitated on hearing that she was still using drugs & working as a prostitute. He returned to his home, drank a small quantity of alcohol, took a boning knife & went looking for her. He killed her by stabbing her to death. This was in the presence of other people whilst the deceased was apologising to him & pleading with him.
Guilty plea - disordered reasoning - history of stable employment.
NPP longer than three-quarters of total sentence by 9m - failure to advert to special circumstances - strong case for special circumstances warranting reduction of NPP below three-quarters of overall sentence.
Appeal dismissed.
298

EADE, Wayne James - CCA, 28.6.2002 - 131 A Crim R 390
Hodgson JA, Hidden J, Smart AJ
Citation: R v Eade [2002] NSWCCA 257
Conviction appeal.
Knowingly give false testimony; incite to supply prohibited drug (ecstasy).
21m FT.
Appellant, who was a serving police officer, was issued with a summons to appear as a witness before the Royal Commission into the NSW Police Service. Warrants were subsequently obtained & listening devices installed in another person's premises. Conversations between appellant & the other person were recorded. Appellant then gave false testimony before the Commission that he had never engaged in any form of illegal conduct. The supply prohibited drug offence arose when the appellant incited a person to supply ecstasy.
Admission of evidence of conversation obtained contrary to Listening Devices Act 1984 - whether transcript of evidence before Royal Commission was evidence of the conversation - whether there can be incitement to supply to oneself - meaning of 'incite'.
Appeal dismissed.
299

ABDULLAH, Barzan Mohammad - CCA, 26.6.2002
Giles JA; Dunford & Greg James JJ
Citation: R v Abdullah [2002] NSWCCA 259
Sentence appeal.
1 x import trafficable quantity opium; 1 x import trafficable quantity cannabis resin.
Total of 6y with NPP of 4y.
Applicant arrived in Sydney on a flight from Bangkok, having previously been in Pakistan. A sniffer dog alerted Customs officers to applicant's shoes. A number of brown taped packages were found underneath the innersole of each shoe, some packages containing opium, the others cannabis resin. The amount of opium found totalled 395.5 grams, while the amount of cannabis resin found totalled 156.8 grams. Applicant denied any knowledge of the drugs, claiming he received the shoes as a gift.
Middle range - application of Olbrich - whether sentences excessive.
Appeal dismissed.
300

NGUYEN, Freedom - CCA, 28.6.2002
Giles JA, Dunford & Greg James JJ
Citation: R v Nguyen [2002] NSWCCA 267
Conviction and sentence appeal.
Robbery in company.
3y with NPP of 18m.
Applicant & 2 co-offenders robbed a young school student whilst he was waiting for a bus.
Aged 21 at time of sentence - drug use - attempts at rehabilitation - general and personal deterrence - prior offences - first full-time custodial sentence.
Whether sentence excessive.
Conviction appeal dismissed (reasons to be given later).
Sentence appeal allowed: resentenced to 2y with NPP of 12m.
301

PHAM, Bao Ngoc - NSW SC, Hulme J, 25.6.2002
Citation: R v Pham [2002] NSWSC 567
Remarks on Sentence.
Murder.
Deceased was a wholesale drug dealer, described as being a mid-range distributor of heroin. The offender was a retail distributor who was assisted by 3 or 4 other persons. The offender was the principal in this retail operation. Offender & a co-offender met with the deceased, who was supposedly going to sell guns & ammunition to offender. Deceased was shot 3 times by offender & co-offender.
Aged 2 months short of 18th birthday at time of offence - born in Vietnam - completed year 5 in Vietnam, then attended school in Australia & completed year 9 - not attracted to learning - family life consisted of rigid routine of work & school, little socialisation or fun - drank alcohol mainly on weekends - did not use illicit drugs - formed relationship with young woman & has a young child - below average intelligence.
Sentenced to 25y with NPP of 20y.
302

ENDERBURY, Christiaan Douglas - NSW SC, Greg James J, 14.6.2002
Citation: R v Enderbury [2002] NSWSC 535
Judgment.
The accused faced trial on 2 charges:
(1) that he did on 15 August 2000 at Ashfield murder his father, Keith Enderbury; and,
(2) that on 15 August 2000 at Ashfield by means of fire he did maliciously damage property at Unit 5, 5 Benalla Avenue, intending by that damage to cause bodily injury to Keith Enderbury.
No other details of offences given.
Trial by judge alone.
Defence of mental illness. Unanimous evidence from 3 investigating psychiatrists & 2 treating psychiatrists that accused had available to him the defence of mental illness. Evidence from medical practitioners of offender suffering from an illness over a number of years.
Special verdict. Not guilty by reason of mental illness.
303

TERAGUCHI, Mariya - NSW SC, Greg James J, 13 June 2002
Citation: R v Teraguchi [2002] NSWSC 529
Judgment.
Special hearing as to mental illness of accused. Accused on trial for the murder of her mother. She entered a plea of not guilty. Upon the indictment being read to her, she informed the trial judge that she did not murder her mother but had killed an imposter. She believed the deceased had kidnapped her mother & was posing as her mother.
Trial by judge alone.
Defence of mental illness. Unanimous evidence from psychiatrists. A consultant psychiatrist gave evidence that in his opinion the accused's condition was a particular psychosis referred to as Capgras Syndrome, an unusual treatment resistant and dangerous variant of chronic paranoid schizophrenia.
Special verdict. Not guilty by reason of mental illness.
304

TAB - CCA, 16.7.2002
Mason P, Sully & Levine JJ
Citation: R v TAB [2002] NSWCCA 274
Conviction and sentence appeal.
Counts 1, 2 & 5: indecently assault female under age of 16y - 2y FT on each commencing 11.8.2000;
Count 3: carnal knowledge by father of female under age of 17y - 4y FT commencing 11.8.2000;
Count 4: buggery - 7y with NPP of 4y commencing 11.8.2000;
Count 6: commit act of indecency on female under age of 16y - 9m FT commencing 11.8.2000.
This was the 3rd trial, the earlier 2 trials having been aborted on preceding days.
Complainant was the natural daughter of the appellant. Offences committed over a period of some years, starting in 1977 when the complainant was 11 years of age.
Relationship evidence - complaint evidence - admissibility - evidence of prior good character - jury - verdict taken before question answered or further directions given - principles.
Appeal dismissed.
305

BISHELL, Matthew John - CCA, 7.6.2002
Heydon JA, Hidden J, Blanch AJ
Citation: R v Bishell [2002] NSWCCA 279
Conviction and sentence appeal.
4 x homosexual intercourse without consent with person between ages of 10 & 18.
Total of 3y PD with NPP of 2y 3m.
Appellant had been indicted on 6 counts, however, he was found guilty on 4 counts & was acquitted on 2 counts.
Warnings - inconsistent verdicts.
Appellant did not commence the PD immediately. He then served the 12m by way of full-time custody, partly because of another sentence of 4m he was given in respect of a driving offence. Upon release from full-time custody, appellant then began serving the PD, although 6w of that PD had been served by way of full-time custody arising out of some mistake. Appellant therefore had served a period of 12m full-time custody & an extra period of almost 6m by way of full-time custody & PD.
Conviction appeal allowed on one count: verdict of acquittal entered on that count.
Sentence appeal allowed on other counts: resentenced to total of 12m FT served by way of PD (sentence already expired).
306

KELLY, Peter - CCA, 27.6.2002
Smart & Blanch AJJ
Citation: R v Kelly [2002] NSWCCA 277
Sentence appeal.
1 x aggravated BE&S; + Form 1 offence (possess 0.09 grams heroin).
5*y with NPP of 3y.
Applicant & a co-offender broke into a chemist shop & stole drugs, a cash box & a number of telephone cards. Some of this activity was recorded on a security video tape & offenders were arrested half an hour later. Police were unable to interview applicant immediately upon his arrest because of his drug-affected state, as he had swallowed some of the Serepax tablets he had stolen.
Aged 25 at time of offence - ran away from home in mid-teens - offence motivated by desire to obtain drugs - long history of drug use - prior attempts at rehabilitation - lengthy criminal history going back to when aged 16 - prior periods in custody imposed by LC - on bond at time of offence.
Two comments by sentencing judge were the subject of appeal:
'... there are two serious matters of aggravation in this prisoner's situation. He has for a man twenty-five a depressingly lengthy criminal history ..'.. The sentencing judge assessed the utilitarian value of the plea of guilty at the earliest opportunity as falling 'towards the bottom of the range'.
Co-offender entered a plea of guilty at his 3rd trial (2 previous trials having been aborted). He, however, received almost 25% discount for that plea, whereas the applicant received 6m discount on a 6y sentence for his plea.
Parity.
Appeal allowed: resentenced to 3*y with NPP of 21m.
307

PHEENEY, Glenn Raymond - CCA, 25.6.2002
Smart & Blanch AJJ
Citation: R v Pheeney [2002] NSWCCA 278
Application for leave to appeal against sentence.
4 x larceny.
Total of 1*y with NPP of 9m.
Applicant part of an organised shoplifting syndicate. His 8 co-accused were also arrested & entered pleas of guilty to a number of charges. The shoplifting appeared to have been organised principally by members of one family, 4 of whom were sentenced. Offenders usually operated in groups targeting expensive, easily disposed of goods in supermarkets. The operations of the group occurred on a regular basis for a period of some 18m. A special police task force was set up to deal with shoplifting which ultimately resulted in the arrest of the applicant & his co-offenders. The goods stolen by the applicant were cosmetics, cigarettes, razor blades, cigars, a cigar humidifier & men's toiletries, the total value of which was a little over $25,000.
Aged 43 & 44 at time of offences - divorced - has 2 children - lengthy prior criminal record - dishonesty, robbery, receiving - alcohol & gambling problem.
Parity.
Application for leave to appeal refused.
308

HO, Dat Quoc - CCA, 29.4.2002 - 130 A Crim R 545
Meagher JA, Hidden & Bell JJ
Citation: R v Dat Quoc Ho [2002] NSWCCA 147
Conviction and sentence appeal.
Robbery in company.
3y with NPP of 18m.
The owner of a butchery & his wife closed their shop at the end of the day, counted their takings & placed them in the wife's backpack (approx $35,000). They then went to their car which was parked at the rear, the wife wearing the backpack. The husband had to go back to the shop & the wife waited by the car for him to return. Three men entered the rear yard, one pulled on the backpack & dragged the woman into the lane at the rear of the shop. On hearing his wife scream, the owner of the butchery emerged from the back of the shop & was confronted by one of the offenders pointing a gun at him. He managed to get away, then ran into the lane where he saw the man take the backpack from his wife & run away. The duty manager of a nearby tavern contacted police & the applicant & his brother were apprehended. The man who took the backpack was not found.
Burden of proof - flight - whether error in directions - whether sentence excessive.
Appeal dismissed.
309

ELLMORE, Robert - CCA, 19.6.2002
Greg James J, Smart AJ
Citation: R v Ellmore [2002] NSWCCA 242
Sentence appeal.
A number of sex offences: Indecent assault; aggravated indecent assault; assault & commit act of indecency.
Total sentence of 11y with NPP of 8y.
Long-term paedophile - rector of Anglican Church - 40 year history of persistent sexual deviation with strong interest in young girls - risk of re-offending without appropriate intensive therapeutic intervention moderately high - availability of long-term treatment programme involving high level of intensive community supervision with a view to successful management of problem.
Appropriate commencement date for sentences - offences committed whilst on parole - special circumstances found - need to reflect them in parole period - pre-trial custody.
Appeal allowed: new total sentence of 10y with NPP of 6y 8m.
310

HAIDAR-WARDAK, Abdullah - CCA, 2.7.2002 - 132 A Crim R 1
Meagher JA, Wood CJ at CL, Bell J
Citation: R v Haidar-Wardak [2002] NSWCCA 35
Conviction and sentence appeal.
Appellant was arraigned on the following charge:
"For that he on 9 June 2000 at Sydney in the State of New South Wales did falsely pretend to Mark Burridge an officer of Westpac Banking Corporation that certain documents presented to him and purporting to be US Federal Reserve Bonds and US Federal Reserve Notes to the value of $US3,200,000,000 were genuine documents and were then of that value by means of which false pretence he attempted to obtain a number of safekeeping receipts with intent to defraud".
Sentenced to 12m with NPP of 6m.
Appellant met with 2 employees of Westpac at the bank's head office in Martin Place, during which he produced a number of documents purporting to be United States Federal Reserve Bonds & United States Federal Reserve Notes. When asked what he wished the bank to do with them, he said he would like the bank to issue a letter confirming it was holding them for safekeeping & he then produced a format document. One of the employees left the room with that document & showed it to a detective who was at the bank in connection with another investigation. That detective & another officer then spoke to the appellant, cautioned him, then arrested him. During the trial, upon re-examination, the arresting detective gave evidence of what "he suspected" the accused intended to do with the receipts.
There was no evidence of any intention to defraud.
Middle-aged disability pensioner - born in Afghanistan - migrated to Australia following Russian invasion.
Intent to defraud - element of intent - supposition wrongly admitted into evidence - ought not to have been elicited - error not corrected by judge - question of proof of element - failure to seek direction.
Appeal allowed: conviction quashed, verdict of acquittal substituted.
311

HUNT, Robert Bruce - CCA, 25.6.2002
Smart & Blanch AJJ
Citation: R v Hunt [2002] NSWCCA 266
Sentence appeal.
Breach of bond.
20m FT
Applicant had originally received a suspended sentence of 20m conditional upon entering a 20m GBB for inciting a person under the age of 16 to commit an act of indecency with him. Less than 3 months after signing the bond, applicant was stopped by police. He was clearly under the influence of alcohol. He was requested to take a breath test, but failed to breathe into the machine properly. He was taken to the police station to be tested & subsequently escaped. He was ultimately convicted of drive whilst disqualified, drive under the influence of alcohol & escape from lawful custody. He was sentenced to 3m on each charge. Applicant appealed to the DC & his appeal was dismissed. The DC judge then dealt with the breach of the bond, which was revoked.
Suspended sentence - breach of conditions - approach required under s.88 Crimes (Sentencing Procedure) Act 1999.
Appeal allowed: resentenced to 20m (backdated by 2 months) with NPP of 10m.
312

MacLEOD, Robert James - CCA, 7.6.2002
O'Keefe & Greg James JJ, Carruthers AJ
Citation: R v MacLeod [2002] NSWCCA 226
Judgment on application for bail pending appeal to HC.
Applicant was convicted for a number of offences under the Companies (NSW) Code.
Special leave to appeal to HC already granted - substantial portion of custodial component of sentence already served - the whole NPP & a portion of the parole period would be served before appeal decided - if granted a retrial, likelihood that by the time that trial held, entire sentence would have been served - combination of factors constituting special & exceptional circumstances.
Bail granted.
313

MILES, Daniel Leslie - NSW SC, Hidden J, 26.2.2002
Citation: R v Miles [2002] NSWSC 84
Remarks on Sentence.
Escape; Murder.
Offender committed the murder while he was an escapee. At the time of the escape, he was serving a sentence of 18y with a NPP of 12*y for a murder he committed in 1990 ( R v Miles, NSWSC, Mathews J, 23.3.1992, unreported).
Aged 18 at time of 1st murder & 27 at time of 2nd murder - guilty plea - abnormal possessiveness - uncontrollable anger.
Sentenced to: 2y for escape; 25y for murder (cumulative) with NPP of 19y.
314

MILES, Daniel Leslie - CCA, 18.7.2002
Stein JA, Bergin J, Carruthers AJ
Citation: R v Miles [2002] NSWCCA 276
Crown appeal.
Escape - 2y;
Murder - 25y with NPP of 19y (cumulative).
Respondent committed the murder while an escapee (see R v Miles[2002] NSWSC 84). At the time of the escape, he was serving a sentence of 18y with a NPP of 12*y for a murder he committed in 1990 ( R v Miles, NSWSC, Mathews J, 23.3.1992, unreported). Respondent had been in a relationship with both deceased. Both deceased had subsequently rejected him, whereupon he killed them. Respondent was aged 18 at the time of the 1st murder & 27 at the time of the 2nd murder.
Guilty plea - abnormal possessiveness.
Manifest inadequacy - whether this a case calling for a life sentence in terms of s.6(1) Crimes (Sentencing Procedure) Act 1999 - relevance of the comparison of the circumstances of the 2nd murder to those of the 1st murder discussed - significance of the 2nd murder having been committed whilst respondent an escapee discussed.
Appeal allowed: resentenced to life imprisonment.
315

GONZALEZ, Carlos - CCA, 19.7.2002
GONZALEZ, Francisco Javier
Smart & Blanch AJJ
Citation: R v Carlos Gonzalez; R v Francisco Javier Gonzalez [2002] NSWCCA 287
Sentence appeals.
20 x armed robbery; 1 x assault with intent to rob whilst being armed with offensive weapon.
Each received a total sentence of 12y with NPP of 9y.
The robberies were committed over a brief period of time, spanning 1 month 1 week. Applicants would select an area in which to carry out a robbery & then select a soft target within that area. The targets selected all involved persons working in retail positions in vulnerable situations such as in convenience stores or petrol station shops (console operators) either late at night or early in the morning. Mostly, the victims were working on their own.
Francisco aged 26 & Carlos aged 23 at time of offences - guilty pleas at earliest opportunity - full co-operation with authorities - full admissions - on occasions applicants identified themselves in photographs or films taken from video cameras - offences committed whilst addicted to heroin.
Appeals allowed in part: Francisco Gonzalez resentenced to effective total of 10*y with NPP of 7y 10m;
Carlos Gonzalez resentenced to effective total of 9y 8m with NPP of 7y 2m.
316

RWO - CCA, 12.7.2002
Ipp AJA, Bell J, Smart AJ
Citation: R v RWO [2002] NSWCCA 133
Application for leave to appeal against interlocutory judgement refusing permanent stay of proceedings.
17 x indecent assault upon person under age of 16; 3 x attempt carnal knowledge.
There were 2 complainants. Four of the indecent assaults were against the older of the complainants, aged 12 & 13 at the time, the attempt carnal knowledge & the remaining indecent assaults upon her sister, aged 9 & 10 at the time. The offences were alleged to have occurred between 1965 &1967. The first time complainants reported these matters to police was in December 1997.
Delay in complaint - prejudice - lost evidence - some witnesses dead.
Leave to appeal granted: appeal dismissed.
317

GMS - CCA, 18.7.2002
O'Keefe & Greg James JJ, Carruthers AJ
Citation: R v GMS [2002] NSWCCA 275
Conviction appeal.
1 x sexual intercourse without consent.
3*y with NPP of 2y 3m.
Appellant was arraigned upon an indictment containing one count of aggravated sexual intercourse without consent (being in the company of co-accused). The Crown relied upon the statutory alternative of sexual intercourse without consent in the event that the appellant was acquitted of aggravated sexual intercourse without consent. The offence was alleged to have occurred when the complainant was aged fifteen. Co-accused was charged with the same offence in relation to a separate act of intercourse, alleged to have been committed by him immediately after the act relied upon against the appellant. Appellant & co-accused both pleaded not guilty. The jury returned verdicts of not guilty to the primary charge in relation to both accused. However, the jury found the appellant guilty of the alternative count of sexual intercourse without consent. The co-accused was found not guilty of the alternative count. Both appellant & co-accused admitted intercourse, however, they maintained it was consensual.
Aged 28 at time of offence - employed.
Apparent inconsistency in jury's verdicts - whether a rational explanation for apparent inconsistency - credibility of complainant - failure to direct - cross-examination - whether miscarriage of justice.
Appeal dismissed.
318

AHMAD, Kevin - CCA, 19.7.2002
Spigelman CJ, Simpson J, Blanch AJ
Citation: R v Ahmad [2002] NSWCCA 282
Judgment on Application for Costs.
On 21.6.2002, the CCA allowed an appeal against conviction & entered verdicts of acquittal on a count of armed robbery & a count of steal MV (see R v Ahmad[2002] NSWCCA 265). At the conclusion of the judgment, appellant applied for a certificate under s.2 of the Costs in Criminal Cases Act 1967 (NSW).
Certificate granted.
319

ALVAREZ, Jamie Paul - CCA, 19.7.2002
ALVAREZ, Phillip Steven
McCULLOCH, John Anthony
Smart & Blanch AJJ
Citation: R v Alvarez, Alvarez and McCulloch [2002] NSWCCA 283
Sentence appeals.
Jamie Paul Alvarez: 2 x assault with intent to rob being armed - total of 10y with NPP of 6*y.
Phillip Steven Alvarez: 2 x armed rob; aggravated robbery being armed; carried in conveyance without consent; conspiracy to commit armed rob; maliciously shoot with intent to prevent lawful apprehension; 2 x drive conveyance without consent - total of 20y with NPP of 15y.
John Anthony McCulloch: - armed rob; conspiracy to commit armed rob; maliciously shoot at with intent to prevent lawful apprehension; carried in conveyance without consent - total of 16y with NPP of 12y.
The robbery offences were perpetrated upon a number of banks, as well as a home & a chemical factory. Firearms were used to threaten victims.
Whether special circumstances - need for additional supervision - statutory ratio - whether sentence manifestly excessive.
Appeals dismissed.
320

DALLEY, Rodney Joel - CCA, 19.7.2002 - 132 A Crim R 169
Spigelman CJ, Simpson J, Blanch AJ
Citation: R v Dalley [2002] NSWCCA 284
Conviction appeal.
Murder.
10y with NPP of 6y.
Crown case was that appellant was one of 4 men who arranged to meet deceased at an isolated place, apparently to purchase cannabis from him. However, they intended robbing him & had armed themselves with a variety of weapons. The situation got out of hand & one or more of the men stabbed deceased. Crown alleged all 4 men were present pursuant to a common purpose that extended to contemplating that GBH would be caused to deceased. A critical piece of evidence admitted against appellant was the content of an electronically recorded interview which was conducted at the Griffith Police Station on the date of his arrest. During that interview, he made significant admissions that incriminated him. It was the admission, over objection, of the ROI that was the focus of all grounds of appeal advanced on behalf of appellant.
Admissions & incriminating statements - Crimes Act 1900, s.352, Part 10A - detention without charge - maximum period permitted - investigation - calculation of period that elapsed - investigation period reasonably suspended or deferred - discretionary judgment - application for detention warrant by telephone - written verification required within one day of grant of warrant - non-compliance with requirement - whether non-compliance invalidates warrant - requirement that person detained be given caution & information orally & in writing - partial non-compliance with requirement - s.138 Evidence Act 1995 - admissibility of evidence improperly or unlawfully obtained - relevance of non-compliance with verification requirement - s.138 impropriety established by reason of partial non-compliance with requirements for caution & information - s.138 assessment - relevance of "nature of relevant offence" for s.138 assessment.
Aged 16y 8m at time of offence.
Appeal dismissed.
321

CAPAR, Muhammad - CCA, 19.7.2002 - 132 A Crim R 160
Mason P, Hulme & Simpson JJ
Citation: R v Capar [2002] NSWCCA 285
Crown appeal.
Threaten to inflict ABH by means of offensive weapon with intent to have sexual intercourse.
2y suspended sentence.
Respondent went to a massage parlour/brothel. After a conversation with the victim (sex worker) about the cost of sexual services, he grabbed her dress & held a knife at her throat, telling her he would hurt her if she screamed. He pushed her onto a bed, knelt on top of her & continued to hold the knife at her throat. He told her not to scream or shout & that he wanted to have sex with her. She told him she could not because she was menstruating. He then took hold of her by the back of the head & ordered her to perform fellatio upon him, without a condom. The victim refused. Respondent placed a towel over her face, covering her eyes & then produced a looped black plastic tie. He told her again not to scream & that he intended to tie her up. The victim pleaded with him. He allowed her off the bed & to stand up. He took hold of the back of her dress & they both walked into the living room. The victim screamed, broke free & escaped. Respondent ran from the premises & was apprehended shortly thereafter, wearing only his trousers & shoes. Respondent only entered a plea of guilty on the 1st day of his trial.
Aged 26 at time of offence - Turkish parents - psychiatric disorder - principles of general and specific deterrence - whether sentence manifestly inadequate.
Appeal dismissed.
322

KAY, Graham James - CCA, 24.7.2002 - 132 A Crim R 72
Sheller JA, Dowd J, Carruthers AJ
Citation: R v Kay [2002] NSWCCA 286
Sentence appeal.
4 x aggravated sexual assault (threats to inflict ABH by means of offensive weapon - knife); + Form 1 offences (2 x aggravated sexual assault; 2 x threaten to inflict ABH with intent to have sexual intercourse).
Total of 20y with NPP of 15y.
All offences were committed against women at night in suburbs on Sydney's lower north shore. Three victims were in their teens, 4 in their twenties & one was aged 39. There were a number of similar elements in each of the offences.
Aged 49 at time of sentence - prior criminal record includes convictions for assault female, indecent assault, peep & pry, breach domestic violence order - not previously imprisoned.
Utilitarian benefit of guilty pleas - appropriate approach to determination of special circumstances - whether some other sentences warranted.
Appeal dismissed.
323

LYBEROPOULOS, Peter - CCA, 26.6.2002
Giles JA, Dunford J, Greg James J
Citation: R v Lyberopoulos [2002] NSWCCA 268
Conviction appeal.
Supply prohibited drug (cannabis leaf) - 2*y with NPP of 15m; deemed supply of prohibited drug (cannabis leaf) - 2*y with NPP of 15m (concurrent).
Appellant arrived in Sydney on a flight from Adelaide. He collected a red suitcase then went to a motel where he met up with several co-offenders. Police conducting a surveillance operation observed them from outside the motel room. They saw another co-offender enter the room empty-handed & leave a short time later with a black suitcase. Police intercepted him & 3 sealed plastic bags of cannabis leaf were found in the black suitcase. Police entered the room & found co-offenders & appellant standing next to the red suitcase on top of which was a plastic bag containing cannabis. Another black suitcase contained bags of cannabis leaf. Total quantity of cannabis leaf found in the motel room was 8.815 kgs.
Actual supply and deemed supply - verdicts - whether supported by evidence.
Appeal allowed: verdicts of acquittal entered.
An adjustment was made to the commencement date of a sentence imposed for a count of supply dealt with at a trial that took place after the trial dealing with the above offences.
324

YAMMINE, Youssef - CCA, 23.7.2002 - 132 A Crim R 44
CHAMI, Walid
Hodgson JA, Studdert & Bell JJ
R v Yammine & Chami [2002] NSWCCA 289
Conviction appeals.
Supply heroin; supply cocaine; detain with intent to hold for advantage; use offensive weapon with intent to commit indictable offence (assault); AOABH.
The principal witness in the Crown case was a heroin user who became indebted in an amount of $2000 during the course of purchasing heroin. He then met the appellant Chami who offered him the choice of working to pay off his debt or the threat of violence for non-payment. The witness subsequently started selling drugs from an apartment which had been provided by the appellants. The witness, however, experienced a shortfall in the money received from the sale of the drugs & thus did not pass on the correct amount of money to the appellants. He was taken by both appellants to an isolated spot & assaulted. He was then told he had until the following Sunday to pay what was owed or the appellant Chami would put a bullet in his head. The witness was unsuccessful in his attempts to raise the money & went to the police. The Crown case depended upon the acceptance of the essential parts of the evidence of their principal witness, as well as other evidence which supported the evidence of that witness.
Testimony of Crown witness - issue of credibility - necessity for warning - whether warning sufficient - EvidenceAct s.165 - introduction by Crown prosecutor of assessment of credibility of Crown witness attributed to judge (other than trial judge) who had earlier sentenced the witness - whether resulting miscarriage - whether verdict on each count 'unsafe and unsatisfactory'.
Appeals allowed: new trials ordered.
325

TYLER, Heather Suzanne - CCA, 7.6.2002
O'Keefe & James JJ, Carruthers AJ
Citation: R v Tyler [2002] NSWCCA 272
Sentence appeal.
1 x import commercial quantity MDMA (ecstasy); + an offence of making a false statement in respect of a passport contrary to the Passports Act 1938 taken into account.
7*y with NPP of 4*y. An order made under s.19 Proceeds of Crime Act for forfeiture of $US500 that was found on applicant at the time of her arrest.
13,917 ecstasy tablets were found concealed in a false bottom of a sports bag belonging to applicant, the gross weight of which was 3,426.3 grams. Upon analysis, the quantity of pure ecstasy was found to be 947.6 grams, with an estimated street value of between $695,850 to $974,190. Whilst applicant's luggage was being x-rayed, she was seen to deposit an Australian passport issued in her name into a bin in the quarantine area. She had previously declared that passport to have been stolen & had subsequently obtained a new passport.
Involvement in importation for money - not mere courier, but not principal.
Prospects of rehabilitation not taken into account by sentencing judge - whether sentence excessive.
Appeal allowed: resentenced to 6y with a NPP of 3y 3m with the condition that applicant attend & complete a full-time drug rehabilitation programme commencing on the day she is admitted to parole.
326

DURANT, Edward Charles - CCA, 7.6.2002
O'Keefe & Greg James JJ, Carruthers AJ
Citation: R v Durant [2002] NSWCCA 295
Sentence appeal.
1 x import trafficable quantity MDMA (ecstasy) - 7y with NPP of 4y 3m;
1 x import cannabis resin - 18m (concurrent).
Applicant was stopped & searched at Kingsford Smith Airport. Inside his luggage, officers found a pair of women's leather platform-soled sandals which contained a number of ecstasy tablets concealed in their soles. Applicant admitted secreting the tablets in the sandals & further admitted that he had an additional quantity of ecstasy tablets as well as cannabis resin concealed in a condom in his rectum. In all, there were 2,213 tablets with a gross weight of a little over half-a-kilogram. Upon analysis, the tablets were found to contain 166 grams of pure MDMA. The cannabis resin weighed 10.9 grams.
Involvement in importation for money - purchase of drugs by appellant for sale in Australia - not a mere courier - in part responsible for the organisation of importation & distribution.
Whether trial counsel incompetent - whether sentence excessive.
Appeal dismissed.
327

LUONG, Thuanh On - CCA, 17.6.2002
Greg James J, Smart AJ
Citation: R v Luong [2002] NSWCCA 238
Sentence appeal.
Supply prohibited drug on 3 or more separate occasions (cocaine); Form 1 offence of goods in custody taken into account.
5*y with NPP of 3y.
Upon arrest, applicant made full & frank admissions to police, estimating that he sold about 80 caps of cocaine a day for $50 a cap, netting $4,000 per day. He would pay his supplier $3,000 of this money & keep $1,000 for himself. He said he worked 2 days a week. He told police he had become addicted to cocaine some 6 months prior to arrest & that his habit was costing him about $200 per day. The goods in custody offence related to $195 which the applicant had on him when arrested. He conceded that $150 of that money was from the proceeds of 3 sales. Whilst in gaol prior to sentence, applicant was approached by a fellow inmate who wanted him to assist in bringing heroin into the gaol for distribution. Applicant declined to do so & was attacked. He received medical attention & was placed on protection & will remain on protection for the duration of his sentence.
Aged 20 at time of offence - strong family support - short period of casual & unskilled employment - prior driving offences - served 6m PD for drive whilst disqualified; had received a bond of 12m for possess prohibited drug.
Early guilty plea - contrition - full co-operation with police - volunteered unknown information - rehabilitation.
Appeal allowed: resentenced to 4y with NPP of 2y.
328

ANDERSON, Ronald James - CCA, 14.6.2002
Spigelman CJ, Adams J, Blanch AJ
Citation: R v Anderson [2002] NSWCCA 304
Crown appeal.
Steal MV; escape; detain for advantage (kidnap); aggravated robbery; aggravated sexual assault.
Total of 12y with NPP of 7y (made up of concurrent & cumulative terms).
Respondent & co-offender escaped from Grafton Correctional Centre. They attacked a 50 year old woman who was walking on a track near a beach. They taped her mouth & tied her hands with cord & rope. She was taken to her own car & placed in the rear seat. The car was driven to an area of bushland where the victim was taken from the car, placed on the boot lid & stripped naked. Offenders then had sexual intercourse with her a number of times. Victim gave evidence that she was threatened with a pair of scissors & told that offenders would 'fill you full of holes'& 'we could slit your throat'The offenders then forced the victim into the car & respondent had further sexual intercourse with her in the rear seat. She was driven to another location where respondent again had penile/vaginal intercourse with her. She was then taken out of the car whereupon the co-offender had sexual intercourse with her. Offenders had taken $20 from the victim's wallet to buy petrol. Victim was forced to take out $50 from an ATM which offenders used to purchase cigarettes & alcohol. Eventually the victim was released & the offenders drove off in her car. Offenders were apprehended some hours later.
Totality - whether adequate weight given - whether method of accumulation appropriate.
Appeal allowed: resentenced to total of 14y with NPP of 11y.
329

GREGORY, David Mathew - CCA, 11.6.2002
Hodgson JA, Levine & Simpson JJ
Citation: R v Gregory [2002] NSWCCA 199
Application for extension of time within which to appeal against conviction.
Conspire to import heroin.
7y with NPP of 2y.
The NPP had been fully served.
Appellant was convicted for the above offence in 1981. Following evidence at the Police Royal Commission, in 1999 he applied for an extension of time to appeal against his conviction.
Fresh evidence - evidence and findings of Police Royal Commission - whether sufficient - error in summing-up disclosed by later judicial decisions - considerations relevant to whether extension of time granted - failure to give accomplice direction - failure to direct jury on unsigned ROI allegedly made by applicant.
Application for extension of time dismissed.
330

MARTIN, Peter Leslie - CCA, 23.7.2002
Sheller JA, Dowd J, Carruthers AJ
Citation: R v Martin [2002] NSWCCA 290
Conviction appeal (extension of time).
1 x maliciously inflict GBH with intent to do GBH; 1 x maliciously wound with intent to do GBH.
Total of 3*y with NPP of 2y.
Both charges arose from appellant's involvement with 2 co-offenders in an assault upon 2 men. Appellant denied he had been involved. He was arrested after police identified his blood on a bat used in the assaults & on the inside left shoe worn by one of the co-offenders during the assaults. Crown case was based on blood/DNA evidence & the testimony of appellant's former business partner who claimed appellant had made confessions to him as to his involvement. Appellant challenged the reliability of his former business partner's evidence on the basis that the animosity between them was such that his evidence was untruthful.
Whether verdict 'unsafe'.
Appeal dismissed.
331

RAYNER, Mark - CCA, 25.6.2002
Smart & Blanch AJJ
Citation: R v Rayner [2002] NSWCCA 309
Application for leave to appeal against sentence (extension of time).
1 x aggravated dangerous drive occasioning death - 6y with NPP of 4y; 1 x dangerous drive occasioning GBH - 4y FT (concurrent).
Offences arose from a collision between applicant's car travelling north & a motor cycle travelling south. Applicant's car hit the median strip, went over it & ended up almost at right angles to oncoming traffic. The motor cycle struck the front passenger door. The front passenger of the motor vehicle received multiple injuries & died. The motor cyclist received compound fractures to the right lower arm, radius & ulna, fractures to right knee, femur & tibia & multiple fractures to his right foot. Applicant also received serious injuries as a result of the collision, including some brain damage. Evidence given by the motor cyclist about the collision was confirmed by a motorist travelling behind the motor cycle. Applicant's blood alcohol level at the time of the collision was between 0.270 & 0.294, while his passenger had a blood alcohol reading of 0.250.
Aged 37 at time of accident - police officer for 18 years until his position was terminated mid-2001 - guilty pleas.
Special circumstances - whether sentence manifestly excessive.
Extension of time granted, leave to appeal refused.
332

TAYLOR, Michael James - NSW SC, Whealy J, 30.4.2002 - 129 A Crim R 146
Citation: R v Taylor [2002] NSWSC 610
Judgment on issue of provocation, self-defence.
Murder.
Self-defence. Statutory defences. Consideration of application of NSW Crimes Amendment Self-Defence Act 2001. Proceedings instituted prior to date legislation came into force. Codification for common law defences of self-defence, provocation.
Judgment: Crimes Amendment Self-defence Act (2001) has no application to the trial
333

BURLING, David Gregory - CCA, 26.7.2002 - 132 A Crim R 92
Heydon JA, Levine & Greg James JJ
Citation: R v Burling [2002] NSWCCA 298
Conviction appeal.
Armed robbery.
PD of 2y 10m with NPP of 12m.
Crown case was that appellant, armed with a screwdriver, robbed the victim of his wallet at a high school. Issue at trial was identification. Crown witnesses gave evidence of the offence & a description of the offender. Each chose appellant from a line-up, however, as the offender was wearing a beanie at the time of the offence & the appellant was not wearing one during the line-up, the one witness, who said she was expecting the offender to be in the line-up, said she 'thought'appellant was the offender 'The face is very familiar, but the long hair's got me'She also estimated that the offender had been about 5' 4'to 5' 6'tall, while the victim estimated his height to be 5' 11'The officer in charge of the case estimated appellant to be about 6' 3'tall. Another issue at trial was the length of appellant's hair. Descriptions of offender matched appearance of another person named in the trial, not the appellant. Appellant's mother gave evidence of finding a plastic bag in the spare room of her house which contained about 40 keys & coloured tags, labelled 'toilets', 'storeroom', etc. These were keys from the high school where the offence took place.
Identification - cogent evidence of the possibility of another as offender - jury verdict unreasonable - could not be support by evidence.
Appeal allowed: verdict of acquittal entered.
334

PARSONS, Aaron John - CCA, 26.7.2002
POORE, Robert James
Handley JA, Sully J, Smart AJ
Citation: R v Parson & Poore [2002] NSWCCA 296
Crown appeal; and
Sentence appeal by Parsons.
Robbery whilst armed with offensive weapon (miniature sword).
2y PD.
Each respondent agreed he & his co-accused participated in the armed robbery. In their records of interview, each pointed the finger at the other as the prime offender. Offence involved respondents ambushing & robbing a pizza delivery person after having made a telephone call to the pizza store & ordering pizza to be delivered to a specified address. When the delivery person arrived at the address, one of the respondents confronted him armed with 'a blade which was about 20 centimetres in length'& took his bumbag which contained about $200. After the robbery, the respondents made their getaway in the victim's car. The driver of the getaway car was not the one who had confronted the victim & taken the bumbag. Police found the car the following day. All the sound equipment in the victim's car (which had earlier been installed by a co-worker) had been stolen. The co-worker was interviewed by police. He had assisted the 2 respondents to transfer the stereo equipment from the victim's car to his own car.
Serious offences usually giving rise to custodial sentences but for exceptional circumstances.
Crown appeal dismissed.
Subsequent revocation of Parson's PD order for non-attendance - serving sentence in custody - failure to fix NPP or give reasons for not doing so.
Parson's appeal against sentence allowed in so far as a NPP of 18m was fixed.
335

SINANOVIC, Hakija - CCA, 25.7.2002
Stein JA, O'Keefe & Buddin JJ
Citation: Sinanovic v R [2002] NSWCCA 292
Conviction appeal.
Fraudulent misappropriation.
18m with NPP of 2m.
Judge alone trial.
Appellant received $27,800 which he was to invest on behalf of another person in the acquisition of an interest in a restaurant, however, he subsequently misappropriated it for his own use.
Appellant had previously stood trial & been convicted for the same offence. He had successfully appealed to the CCA, his conviction was set aside & a new trial ordered (see R v Sinanovic [2000] NSWCCA 396). No point was taken in relation to the form of the indictment either at the 1st trial or on appeal, nor was any adverse comment made by the CCA in relation to the form of the indictment. At the 2nd trial, no point was taken in relation to its form.
Non-inclusion in indictment of names of persons to whom payments to be made - elements of offence - validity of indictment.
Appeal dismissed.
336

WILSON, Scott Geoffrey - CCA, 23.7.2002
Sheller JA, Bell J, Carruthers AJ
Citation: R v Wilson [2002] NSWCCA 288
Conviction appeal.
1 x knowingly take part in manufacture of prohibited drug (methylamphetamine); 1 x cultivate cannabis plants.
Total of 12m with NPP of 9m home detention.
Appellant was arrested after the execution of 2 search warrants on his premises which revealed items that had been used in a step in the manufacture of methylamphetamine. Police also found 87 cannabis plants.
Circumstantial evidence - reasonable hypothesis - whether conviction 'unsafe & unsatisfactory'.
Appeal dismissed.
337

SJF - CCA, 26.7.2002
Stein JA, Greg James & Howie JJ
Citation: R v SJF [2002] NSWCCA 294
Conviction appeal and application for leave to appeal against sentence.
Multiple child sexual assault offences (1 x assault & commit act of indecency; 1 x sexual intercourse; 7 x sexual intercourse in circumstances of aggravation).
10y with NPP of 6y.
Complainant in each count was appellant's stepdaughter who was aged 11 years at time of 1st offence & 18 years at the date of the last offence. Complainant first raised the allegations against the appellant to her boyfriend's mother & then made a formal complaint to the police 2 days later. There was thus a delay in complaint of almost 7 years in respect of the 1st count & one day in respect of the last count.
Delay in complaint - whether warnings sufficient in circumstances of particular case.
Conviction appeal dismissed.
Application for leave to appeal against sentence refused.
338

WOOLERY, Terryl Lance-Joseph - CCA, 18.7.2002
Stein JA, Greg James & Howie JJ
Citation: R v Woolery [2002] NSWCCA 299
Sentence appeal.
Import commercial quantity MDMA (ecstasy).
7*y with NPP of 4*y.
The quantity of the MDMA powder imported was 1,570.2 grams. Applicant was stopped at Sydney airport & was found to have the MDMA strapped to his body. The amount was calculated as being capable of producing 14,900 tablets of 30% purity, with a potential street value of $745,000. Applicant readily admitted his guilt & told Federal police he obtained the drug in Amsterdam, that he was given money for his air ticket & told he would be paid US$10,000 for the delivery of the drug. Applicant pleaded guilty in the LC & adhered to his plea in the DC.
Insufficient weight given to guilty plea at earliest opportunity - failure to properly characterise criminality.
Appeal dismissed.
339

LIM, Cheong Boon - CCA, 30.7.2002
YEUNG, Chi Wai
Spigelman CJ, O'Keefe & Simpson JJ
Citation: R v Lim & Yeung [2002] NSWCCA 293
Lim - conviction appeal.
Yeung - conviction and sentence appeal.
Possess commercial quantity MDMA (ecstasy).
9y with NPP of 5y 4m.
The Crown case depended heavily upon evidence of surveillance of the men over a 3 day period, although the surveillance had been in progress for a much longer period of time. The surveillance evidence encompassed both physical observation of their movements & evidence of legally intercepted telephone conversations.
Admissibility of statements made by participants to joint criminal enterprise against other alleged participants - evidence of intercepted telephone calls to which appellants were not party - reasonable evidence of pre-concert - prejudicial value of probative value of evidence - whether verdicts 'unsafe & unsatisfactory'- whether error in finding judgment verdict entailed knowledge of actual quantity of drugs - whether sentence excessive.
Appeals dismissed.
340

SPEECHLEY, Warren - CCA, 26.7.2002 - 133 A Crim R 26
Mason P, Hulme & Hidden JJ
Citation: R v Speechley [2002] NSWCCA 300
Crown appeal.
Possess trafficable quantity cocaine; + offence of possession of $19,900 reasonably suspected of being the proceeds of crime.
4*y with NPP of 2y.
Respondent came to the notice of authorities as a participant in telephone conversations with another person whose calls were being monitored. Police then executed a search warrant on respondent's premises where they found a sock containing $19,000 in cash in a garden shed & 19 clip seal bags & 2 other bags containing cocaine in respondent's bedroom cupboard. Respondent admitted to being involved in trafficking. There was uncontested evidence before the sentencing judge that the estimated street value of cocaine was $200 per gram.
Sentence manifestly inadequate - failure to have proper regard to decision of Wong & Leung - undue weight placed on prior good character - incorrectly categorised reason for committing offences as a mitigating factor rather than a circumstance of aggravation - failure to have proper regard to the offence under Proceeds of Crimes Act.
Appeal allowed: resentenced to 7y with NPP of 4y.
341

WALTERS, William John - CCA, 25.7.2002
Hodgson JA, Studdert & Dowd JJ
Citation: R v Walters [2002] NSWCCA 291
Conviction appeal & application for leave to appeal against sentence.
10 x defraud Commonwealth (offences involved failure to remit group tax to Commissioner of Taxation).
Total sentence of 7y 8m with NPP of 6y.
Each count related to a different company. Crown case was that the appellant had been the principal of each of the 10 companies involved & that during the period January 1989 to May 1998, he had conducted a substantial bricklaying business in the names of those companies, successively, contracting mainly for Meriton Apartments. Each company had employed a large number of men, ranging at different times from about 60 to 250. Regular deductions of group tax were taken from their pay but there were substantial defaults in remitting the group tax to the ATO. The total amount not submitted was $6,726,671.58.
Ten counts heard together - facts relating to earlier counts probative of knowledge & intention in respect of later counts - tendency evidence - coincidence evidence - whether specific direction necessary - whether prejudicial effect outweighed probative value.
Conviction appeal dismissed. Leave to appeal against sentence refused.
342

CURRY, Patrick - CCA, 26.7.2002
CURRY, Elizabeth
Heydon JA, Levine Adams JJ
Citation: R v Curry [2002] NSWCCA 315
Conviction appeals.
Various offences relating to importation & supply of heroin (actual offences not stated).
The prosecution resulted from a joint task force investigation code named Operation Bing. Offences alleged to have taken place in 1984 & 1985. In 1987, appellants were convicted & sentenced for the offences. The Crown successfully appealed against those sentences. Appellants unsuccessfully applied for leave to appeal against sentence. They then unsuccessfully appealed against convictions. In 1995, the Royal Commission into the NSW Police Service heard evidence from a number of witnesses concerning the investigation & prosecution arising from Operation Bing. In February 2002, an application was made to the SC under s.474D Crimes Act 2000 which was referred to the CCA to be dealt with as appeals under the Criminal Appeal Act 1912.
Corrupt police officers - concocted evidence.
Appellants already served the NPP.
Appeals allowed: convictions and sentences quashed, verdicts of acquittal entered.
343

ZIBELNIK, Frank - CCA, 1.8.2002
Sperling & Greg James JJ
Citation: R v Zibelnik [2002] NSWCCA 317
Sentence appeal.
Aggravated BE & commit serious indictable offence (malicious damage whilst armed with offensive weapon); + Form 1 taken into account (2 x assault).
Total of 5y with NPP of 3y 8m.
Applicant unrepresented on appeal.
Applicant & his brother, armed with a baton & an axe, broke into a house at 1.30 am on the morning of the offences. They assaulted & terrorised the occupants, as well as causing extensive damage to property. The motive was that they wanted to scare the male occupants of the house because of a grievance to do with the sale of drugs by the occupants to the offenders.
Sentence manifestly excessive - no previous imprisonment - insufficient weight given - parity.
Appeal dismissed.
344

JACKSON, Lloyd William - CCA, 23.7.2002
Sheller JA, Hidden & Adams JJ
Citation: R v Jackson [2002] NSWCCA 303
Conviction appeal.
Homosexual intercourse; assault male with intent to have homosexual intercourse; commit act of gross indecency with male. Sentence not stated.
Offences alleged to have been committed upon one complainant aged between 16 & 17 at the time of the offences. The case was one of word against word. Appellant denied any sexual contact whatsoever. There was a delay of over 13 years before complaint was made.
Two week interruption of trial in the course of the Crown case - whether jury should have been discharged - whether trial as a whole unfair.
Appeal dismissed.
345

GDM - CCA, 31.7.2002
Mason P, Hidden J, Carruthers AJ
Citation: R v GDM [2002] NSWCCA 261
Conviction appeal.
1 x indecent assault; 2 x attempt carnal knowledge.
Sentence not stated.
There were 9 counts in the indictment, brought under sections of the Crimes Act which have since been repealed: 3 counts of indecent assault (s.76) & 6 counts of attempted carnal knowledge (s.72). Appellant was found guilty only of counts 2, 3 & 5. The trial judge directed his acquittal of count 4 (attempt carnal knowledge) & the jury found him not guilty of the remaining counts. Offences were alleged to have occurred in the family home when the complainant was aged between 10 & 14. Appellant is approximately 8 years older than the complainant. Complainant born profoundly deaf. During her childhood, she communicated by way of mime, lip reading, facial expressions & improvised signs. It was only when she was about 17 or 18 that she began to learn sign language.
Verdicts unreasonable - detail - specificity - credibility.
Appeal dismissed.
346

VERGARA, Brandon Lee - CCA, 26.7.2002
Heydon JA, Levine & Adams JJ
Citation: R v Vergara [2002] NSWCCA 314
Sentence appeal.
Import trafficable quantity cocaine.
8y with NPP of 5y.
The amount of cocaine was approx one kg. There was evidence before the sentencing judge & in the related trial of the co-offender (Chanthaboury) as to irregularities in the sampling process which meant that the original calculation by the analyst could not be relied on.
The co-offender appealed against his sentence which was reduced from 7*y with a NPP of 4*y to 6y with a NPP of 4y (see R v Chanthaboury [2001] NSWCCA 74,120 A Crim R 505).
Parity - significant assistance to authorities - entitled to appropriate reduction in sentence.
Appeal allowed: resentenced to 6y with NPP of 4y.
347

WELDON, Shaun Albert - CCA, 20.6.2002
Dunford & Adams JJ
Citation: R v Weldon [2002] NSWCCA 308
Sentence appeal.
Robbery.
6y with NPP of 4*y.
Applicant & 3 others travelled in a stolen MV to Penrith Plaza. Applicant armed himself with a 30 cm knife & 2 co-offenders armed themselves with large spanners. These 3 men then entered a jewellery store. The applicant herded the staff into a rear office while the 2 co-offenders smashed glass jewellery display cabinets & placed $250,000 worth of jewellery in bags which they had with them. The 4th offender remained in the stolen MV. When the offenders drove off in the MV, it collided with a concrete barrier, which caused the front tyre to deflate. All 4 offenders then ran off. The applicant & one co-offender were arrested a short time later. Money stolen during the robbery was found on the applicant & the jewellery was located nearby. The co offender was convicted & sentenced to 4y with 3y. He successfully appealed against this sentence & was resentenced to 4y with a NPP of 2y (see R v Hughes [2001] NSWCCA 264). The other 2 co-offenders have not been caught.
Aboriginal descent - disruptive upbringing - problem with drinking & drugs - desperate for cash to feed drug habit.
Early guilty plea - full admissions - contrition - totality - special circumstances - Fernando (1992) 76 A Crim R 58.
Appeal allowed: resentenced to 6y with NPP of 3y.
348

McNAMARA, Glenn Ernest - CCA, 30.7.2002
Sperling & Greg James JJ
Citation: R v McNamara [2002] NSWCCA 318
Sentence appeal.
Maliciously inflict GBH with intent to do GBH.
4y with NPP of 1y 9m (special circumstances found).
Applicant was drinking at a hotel. The victim was also drinking at the hotel with his girlfriend. Applicant knew the victim's girlfriend. Applicant had little memory of the offence & could not explain his conduct. Applicant evidently attacked the victim without provocation, punching him on the right shoulder. A struggle ensued & the applicant bit the victim's right hand causing a superficial injury. The 2 men were pulled apart but the applicant again attacked the victim & during this struggle he bit a portion from the victim's nose, exposing the bone. The victim was hospitalised for 4 days, underwent a skin graft & at the time of sentencing required further surgery.
Aged 31 - guilty plea at earliest possible time - addicted to alcohol at time of offence - has not had a drink since that time - undergone rehabilitation treatment & joined AA - prior to offence was separated from wife because of alcohol problem - since reconciled - no history of violent behaviour - prior conviction for stealing for which he was fined.
Applicant had handed himself in to police - remorse - contrition - hardship to family - has a son who needs his help (son is hyperactive) - offence not at upper end of range of injuries - whether sentence excessive.
Appeal allowed: resentenced to 2y 9m with NPP of 1y 6m.
349

HEATLEY, Earl - CCA, 30.7.2002
Levine & Simpson JJ, Carruthers AJ
Citation: R v Heatley [2002] NSWCCA 297
Conviction appeal.
2 x murder; 1 x malicious wounding.
Accused & his brother entered into an agreement to carry out an armed robbery of a factory in order to obtain some chemicals to manufacture illicit drugs. The owner of the factory premises was tied up, however, some time later he managed to get free & use the phone. After recovering from a blow struck by the accused's brother, the owner struggled with him & prevented him from fleeing. The brother called out to the accused to shoot the owner, whereupon the accused fired 5 shots from a pistol, one bullet going into the arm of a factory employee, 3 going into the owner & one going into the accused's brother. The owner died almost immediately, the accused's brother managed to get to the loading area outside where he collapsed & died.
Sentence: for murder of owner - life; for murder of brother - FT of 20y; for malicious wounding - FT of 15y.
Probative value of witnesses' statements to police following leave to cross-examine by prosecutor as unfavourable witnesses - whether convictions unreasonable or unable to be supported having regard to the evidence.
Appeal allowed: convictions quashed - new trial ordered on all counts.
350

JJN - CCA, 24.7.2002
Mason P, Hulme & Simpson JJ
Citation: R v JJN [2002] NSWCCA 281
Conviction appeal.
4 x indecent assault - concurrent FT of 2*y on each charge;
4 x sexual intercourse - concurrent terms on each charge of 6y 3m, to be served cumulatively upon the FT.
Offences alleged to have been committed upon appellant's niece & were alleged to have taken place between 1.8.1998 & 12.1.1999 when complainant was aged 10.
Hearsay evidence - directions - s.165 Evidence Act - warnings - motive to lie.
Appeal allowed: convictions on all charges quashed - new trial ordered.
351

HOLLIS, Mark Newman - CCA, 30.7.2002
Sperling & Greg James JJ
Citation: R v Hollis [2002] NSWCCA 306
Sentence appeal (extension of time).
Multiple sexual offences against young children (indecent assault; attempt have sexual intercourse; sexual intercourse).
Total of 10y with NPP of 6y.
The offences were perpetrated upon small children, ranging in age from 2 years to 10 years.
Principles in Pearce (1998) 194 CLR 610 - discount for volunteering confession - Ellis (1986) 6 NSWLR 603 - grounds asserting error in failing to give discount - whether sentence manifestly excessive.
Appeal dismissed.
352

NEMETH, John Joseph - CCA, 24.7.2002
Mason P, Hulme & Simpson JJ
Citation: R v Nemeth [2002] NSWCCA 281
Conviction appeal.
4 x indecent assault; 4 x sexual intercourse (with niece, aged 10).
Total of 8y 9m with NPP of 6y.
The only evidence relied upon in respect to the first 6 counts was that coming from the complainant. Besides evidence given by complainant regarding the other 2 counts, the only other evidence relied upon was provided by some hearsay statements from the complainant's mother who purported to recount statements made to her by a male who had either been living at the same premises or was there fairly often.
Error in trial judge's directions on hearsay evidence - failure to comply with s.165 Evidence Act - direction on complainant's motive to lie inadequate.
Appeal allowed: new trial ordered.
353

NGUYEN, Ninh Thai - CCA, 30.7.2002
Sperling & Greg James JJ
Citation: R v Nguyen [2002] NSWCCA 305
Sentence appeal.
1 x robbery in company; 2 x aggravated robbery (deprive person of his liberty).
Total of 3*y with NPP of 18m.
The 1st offence involved applicant & a co-offender robbing a male of money & a mobile phone as he was leaving the toilets at a shopping centre in Haymarket. The 2nd & 3rd offences involved applicant & 2 co-offenders accosting 2 young males at Paddy's Markets in Haymarket & taking their wallets & credit cards. Pin numbers were obtained & 2 of the offenders left while the other remained with the 2 victims. The 2 co-offenders returned & threatened the 2 victims as they had not provided the correct pin numbers. The correct pin numbers were obtained & the 2 offenders left once more. When they returned, the victims were handed back their wallets & allowed to leave. One of the victims found that $780 had been withdrawn from his bank account, the other had $550 withdrawn from his.
Aged 19 at time of offences - family were refugees from Vietnam - education in Australia had been disrupted although applicant had been a reasonable student with a high degree of intelligence - positive steps towards rehabilitation - although had previously left family home, is now reunited with his family - family support - broken links with criminal associates - priors.
Relevance of sentence of co-accused for these & other crimes - application of s.6(3) Criminal Appeal Act 1912.
Appeal dismissed.
354

SULLIVAN, Gerard Allan - CCA, 1.8.2002
Sperling & Greg James JJ
Citation: R v Sullivan [2002] NSWCCA 312
Sentence appeal.
Armed robbery with an offensive weapon.
4*y with NPP of 2y 9m.
The victim was walking down a street in Gosford in the evening. A red Mitsubishi sedan was parked in the street. The applicant got out of the car, approached the victim & said "You wouldn't know anywhere I could fucking get on?", whereupon victim attempted to walk around him, however, he seized her around the throat. Applicant produced a knife, held it to victim's throat & demanded her money He took hold of her handbag, pulled it from her shoulder & pushed her to the ground. Victim landed heavily on the ground causing immediate intense pain to her left elbow & right thigh. Applicant then got into the car with the bag & drove off. Victim was assisted by 2 witnesses. She identified applicant the following day & he was apprehended later that day. Applicant did not make any admissions of being involved in the robbery during his ROI. He later pleaded guilty. Although the victim referred to the weapon as being a knife, the applicant told a psychologist & his Honour in evidence on the plea that what he used was, in fact, a screwdriver.
Appropriate discount for plea - appropriate allowance for voluntary custodial rehabilitation programme - error in failing to follow principles in Thomson & Houlton.
Appeal allowed: resentenced to 4y 1m with NPP of 2y 3m.
355

WALDER, Peter Bernard - CCA, 25.6.2002
Smart & Blanch AJJ
Citation: R v Walder [2002] NSWCCA 310
Sentence appeal.
Aggravated indecent assault.
4y 10m with NPP of 3y.
Applicant was staying the night at the home of the complainant's mother. He went into the daughter's bedroom. Her 9 year old friend was also there. Applicant kissed the daughter in the pubic area on the outside of her panties and also on her stomach. The child's mother entered the room & saw the applicant pulling up the doona on the bed. She immediately left the house with the children & reported the matter. In the meantime, applicant contacted the DOCS help line & informed the telephonist of what he had done. Applicant made full admissions to the police.
Prior sexual offences upon young girls - admitted to sexual drive for young girls - diagnosed with psycho-effective psychosis associated with a well organised paranoid delusional system - life-long illness requiring continuing treatment - substantial risk of re-offending.
Guilty plea at earliest opportunity - utilitarian value - immediate admissions to police - remorse.
Appeal allowed: resentenced to 3y with NPP of 21m.
356

TVC - CCA, 1.8.2002
Sperling & Greg James JJ
Citation: R v TVC [2002] NSWCCA 325
Sentence appeal.
Assault with intent to rob whilst armed with dangerous weapon.
4*y with NPP of 2y (to be served in a detention centre).
Applicant approached & attacked the victim at Fairfield Railway Station at about 11.30pm on a Sunday night. The attack was planned. Two other males were in the vicinity keeping watch. Applicant demanded the victim's mobile phone & threatened him with a knife & a loaded gun, which he cocked in front of the victim. In a struggle that followed, the victim managed to hit the applicant & take his knife & gun from him. Applicant aged 15 years at time of offence.
No priors - guilty plea at first available opportunity - remorse - contrition - immature adolescent - vulnerable to negative peer group pressure - bullied for some months prior to offence, had taken up with group of undesirables for protection - not the leader in the planned operation - good prospects of rehabilitation - extremely supportive family.
Failure to give sufficient weight to youth - too much emphasis given to general deterrence.
Appeal allowed: resentenced to 3y with NPP of 1*y (to be served in a detention centre).
357

DE GRUCHY, Matthew Wayne - HC, 8.8.2002 - 211 CLR 85; 76 ALJR 1078
Gaudron, McHugh, Kirby, Hayne & Callinan JJ
Citation: De Gruchy v The Queen [2002] HCA 33
Following a trial in the Supreme Court of NSW, the appellant was convicted of the murder of his mother, brother & sister. The case that they were murdered by the appellant was entirely circumstantial. The CCA dismissed appellant's subsequent appeal against conviction.
Circumstantial case - directions to jury - absence of proved motive - evidence of appellant's good character - accuracy & sufficiency of directions to jury - whether verdict unreasonable having regard to the evidence.
Appeal dismissed.
358

FONSEKA, Nishad - CCA, 30.7.2002
Sperling & Greg James JJ
Citation: R v Fonseka [2002] NSWCCA 324
Sentence appeal.
Robbery in company.
4y with NPP of 2y (special circumstances found).
Applicant appeared for trial in relation to aggravated robbery in company, however, the indictment presented consisted of robbery in company & applicant pleaded guilty to that count.
A woman was holding a mobile phone whilst sitting in a parked vehicle. Applicant & another man approached the car. The other man took hold of the woman's hand & wrenched the mobile phone from her, while applicant stood by. The two men then fled.
Aged 19 at time of offence - priors dealt with in Children's Court which included stealing, drive conveyance without consent, aggravated robbery - previous imprisonment for AOABH, possess knife in public place, larceny, obtain money by deception, possess prohibited drug - poor prospects of rehabilitation - specific deterrence.
Level of objective criminality - insufficient weight given to utilitarian value of guilty plea - insufficient weight given to subjective features.
Appeal dismissed.
359

GORREL, Colin Robert - CCA, 25.6.2002
Smart & Blanch AJJ
Citation: R v Gorrel [2002] NSWCCA 307
Sentence appeal.
Aggravated BE&S; 2 x drive conveyance without consent; possess car-breaking implements; 10 x BE&S.
Total of 8y with NPP of 4y.
The aggravated BE&S offence arose from the fact that applicant broke into a house & was in the process of searching it when the owners returned. Applicant wrestled with the male owner before the owner managed to throw applicant over the back porch, whereupon applicant ran away. He was caught by 2 police officers nearby. Clothes & other stolen items from the house were found in applicant's backpack. Each of the 10 BE&S offences were committed whilst owners were absent from their homes. Total value of property stolen during those offences was $43,000. A small amount of the stolen property was recovered.
Guilty plea to all counts entered at earliest opportunity - utilitarian value - sentence discounted by 25%.
Inadequate weight given to offender disclosing offences - misapplication of Pearce - insufficient weight given to subjective features - service of sentence in protection.
Appeal allowed in part: resentenced to total of 5*y with NPP of 3y.
360

JAMMAS, Ali - CCA, 1.9.2002
Sperling & Greg James JJ
Citation: R v Jammas [2002] NSWCCA 329
Sentence appeal.
1 x receiving; + Form 1 offences (5 x receiving involving cigarettes with retail value of $71,960).
3y with NPP of 1y 8m.
The goods received consisted of a quantity of cigarettes with a retail value of $89,000. Applicant & his co-offender were both convicted. Sentencing judge described the objective criminality of the 2 men as similar. Co-offender was sentenced to 2*y with NPP of 1y. Co-offender's criminal history was significantly worse than that of applicant.
Parity.
Appeal dismissed.
361

MARSHALL, Michael George - CCA, 1.8.2002
Sperling & Greg James JJ
Citation: R v Marshall [2002] NSWCCA 311
Sentence appeal.
Aggravated sexual assault upon male child; + 2 x breach of bond also dealt with (aggravated indecent assault); + 4 additional offences taken into account (sex offences with minors & supply liquor to minors).
6*y with NPP of 4y 9m.
The aggravated sexual assault charge involved the taking of advantage of a young boy in circumstances in which the applicant had plied him with alcohol & seduced him in the applicant's home at a time at which the victim had apparently become ill. He was asleep when the criminal act was perpetrated upon him & attempted to refuse the advances of the applicant.
Guilty plea - priors include offences of dishonesty, driving with prescribed concentration of alcohol, acts of indecency & other sexual offences with young children - previous imprisonment.
Breaches of recognizance - effect of prior offences - necessity for deterrence.
Whether sentence manifestly excessive.
Appeal dismissed.
362

HART, Kellie Anne - CCA, 23.7.2002 - 131 A Crim R 596
Sheller JA, Hidden & Adams JJ
Citation: R v Hart [2002] NSWCCA 313
Conviction appeal.
Robbery with corporal violence.
Sentence not stated, except that appellant was 'granted the benefit of a non-custodial sentence'.
Crown case was that appellant lured the victim into TAFE grounds so that an accomplice could rob him. Once inside the grounds, the victim was struck on the back of the head & robbed. Victim had consumed a considerable amount of liquor prior to the attack. The victim's evidence differed in some respects from his account to the police, but not in substance. The trial was complicated because an important Crown witness gave evidence contradicting the victim's account in several vital aspects. Appellant called evidence of good character from a family friend. The evidence of that character witness was capable of being very significant. The trial judge commenced his summing up, but interrupted himself after a couple of sentences to state he had just been handed a question which the court officer got from one of the jurors. The note was not marked & its contents not read onto transcript. The judge then adjourned the court for lunch & the note was returned for the jury to discuss. When the jury returned, the judge gave directions on character, referring to the appellant's 'previous good character', which may have implied to the jury that her character was now in question.
Element of offence - need for Crown to prove an agreement implicit or explicit existed between actual assailant & appellant - directions inadequate.
Appeal allowed: conviction quashed, verdict of acquittal entered.
363

F - CCA, 9.8.2002 - 132 A Crim R 308
Meagher JA, Simpson & Howie JJ
Citation: R v F [2002] NSWCCA 320
Crown appeal.
Aggravated sexual assault.
5y with NPP of 3y.
The victim was respondent's 6 year old stepdaughter. Respondent & his wife (victim's mother) had a 3 year old son. Respondent's wife worked as a nurse on night shift. She was at work on the date of the offence. The victim & her brother were in the care of the respondent & were both in bed asleep. Respondent removed the victim from her bedroom & took her to the bedroom he shared with his wife. He tied her hands to the bedhead, gagged her by stuffing a handkerchief into her mouth & then had penile/vaginal sexual intercourse with her. The victim struggled violently & screamed in pain. Victim suffered extensive bleeding caused by a large tear which was repaired under general anaesthetic.
Born in Fiji - aged 27 at time of offence - no priors - depression - undertaken anger management course whilst in custody - on protection - consistency in sentencing.
Sentence manifestly inadequate.
Appeal allowed: resentenced to 13y with NPP of 8*y.
364

BUDD, Stuart James - CCA, 14.8.2002
Dunford J, Carruthers AJ
Citation: R v Budd [2002] NSWCCA 302
Sentence appeal.
1 x armed robbery with wounding; 13 x robbery whilst armed with offensive weapon; 1 x assault with intent to rob; + a further 10 offences on two Forms 1 (robbery whilst armed, assault with intent to rob, attempt robbery whilst armed).
Total of 15y with NPP of 11y.
Applicant entered pleas of guilty to all offences, including those on the two Forms 1. All offences involved applicant repeatedly entering a variety of retail establishments, armed with a 'Stanley Knife', threatening the attendants, demanding the opening of tills & removing various sums of money from the tills. The armed robbery with wounding took place in a supermarket. An employee attempted to detain the applicant whereupon the applicant wounded the employee below the throat & on the left arm, which caused the employee to release the applicant.
Aged 35 at time of arrest - guilty plea at earliest opportunity - on a pension, occasionally supplemented by working as a plant operator - father of 2 children - violent upbringing - good education - previous full-time employment - addicted to heroin - priors - dysthymic disorder - low self-esteem - in need of considerable psycho-therapy & psychiatric treatment for depression - on protection after being assaulted in prison.
Sentencing discretion - whether sentences manifestly excessive.
Appeal allowed: sentence on count 13 reduced, resulting in an effective total sentence of 13y, NPP 8*y.
365

MANTON, Lance John - CCA, 8.8.2002 - 132 A Crim R 249
Mason P, Hulme & Simpson JJ
Citation: R v Manton [2002] NSWCCA 316
Stated case.
An incident took place at a hotel in Ballina. Appellant was arrested by a police informant & other police. When he was later placed in a cell by the informant & other police, appellant looked directly at the informant & threatened him. The informant gave evidence that he saw the appellant draw his finger across his throat simulating the cutting of his throat. The informant felt concerned & threatened by the words & actions of the appellant. Appellant contended the offence of intimidation of a police officer under s.60(1) requires proof, not merely that the officer was put in fear or apprehension, but that such fear overbore him or her to such an extent that he was influenced to or deterred from some action in the course of his duty, and that there was no evidence of any relevant interference with the officer's duty.
Intimidation of police officer - s.60(1) Crimes Act 1900.
Questions from trial judge for determination:
'1. Is the offence of intimidation of a police officer under s.60 of the Crimes Act established by proof of no more than that the acts or words of the accused caused the officer to experience fear or apprehension?
2. Was I on the evidence presented on behalf of the Prosecutor, entitled to determine that there was a case for the appellant to answer?'
Both questions answered 'Yes'.
366

HANSEN, Euon Arne - CCA, 14.8.2002
Dunford J, Carruthers AJ
Citation: R v Hansen [2002] NSWCCA 321
Sentence appeal.
2 x robbery in company; 1 x robbery; 1 x use offensive weapon to prevent lawful apprehension; + Form 1 offence (resist police officer in execution of his duty).
Total of 8y with NPP of 5y (sentences not expressed in form required by statute).
The robberies in company were committed at the Caltex Service Station at Minto, one in April 1999, the other a month later. The robbery occurred in July 1999 at the Five Star Supermarket at Bradbury & the use offensive weapon occurred later the same day when applicant was chased & caught following the robbery.
Since original sentence was imposed, applicant was convicted for escape from lawful custody & shoplifting.
Aged 23* at time of offences - guilty pleas - close & supportive family - has 3 children - association with delinquent peer group since adolescence - anti-social behaviour, eventual entry into Boys Town at age 14 - drug use at age 13 - continuing drug problem - extensive criminal record going back to age 16 - previous custody.
Necessity to re-sentence - power of CCA to re-sentence.
Appeal allowed: resentenced, giving an effective total of 8y with NPP of 5y.
367

McGOURTY, Sallie Ann - CCA, 13.8.2002
Giles JA, Wood CJ at CL, Levine J
Citation: R v McGourty [2002] NSWCCA 335
Crown appeal.
1 x kidnapping; + Form 1 matters.
2y suspended sentence.
Victim, a security guard, was assaulted & forced into a vehicle by 2 male offenders, one armed with a knife. They attempted to force him to disclose his PIN number & credit card details. Respondent drove the victim & the 2 male offenders into bushland, then waited in the motor vehicle while the 2 male offenders took the victim into the bush where they threatened & then assaulted him. They later abandoned him, tied to a tree. Police arrested respondent in the motor vehicle. She was unco-operative as to victim's location or whether co-offenders were armed.
Objective criminality - need for general deterrence - matters of aggravation - totality - subjective circumstances to be kept in perspective - instinctive synthesis approach to sentencing - 2 tiered approach.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 3y with NPP of 2y.
368

TON, Nhat Thang - CCA, 19.8.2002 - 132 A Crim R 340
Mason P, Dowd J, Smart AJ
Citation: Ton v Regina [2002] NSWCCA 337
Conviction appeal.
2 x malicious wounding with intent to do GBH.
10y with NPP of 3y.
The above sentence was cumulative upon a sentence of 22 years with a non-parole period of 14 years which was being served for murder at the time of the above offences.
Appellant & 2 co-accused, who were all inmates at Parklea Prison, armed themselves with home-made knife-type weapons & entered the cell of the 2 victims. Both victims were stabbed, requiring hospitalisation.
Evidence of no moment incorrectly admitted but not objected to - judge's directions incorrect in telling jury to scrutinise evidence of accused with care & that accused was of bad character - this was obvious & jury would naturally approach their evidence with reserve - other balancing directions - no objection to directions at trial - different emphasis in case on appeal from that at trial.
Appeal dismissed.
369

WHYTE, Dale Shane - CCA, 20.8.2002 - 55 NSWLR 252; 134 A Crim R 53
Spigelman CJ, Mason P, Barr, Bell & McClellan JJ
Citation: R v Whyte [2002] NSWCCA 343
Guideline Judgment reformulated.
Crown appeal.
1 x aggravated dangerous drive occasioning GBH.
2y 3m with NPP of 12m; driver's licence disqualified for 4y.
In R v Whyte the CCA reformulates R v Jurisic, the guideline judgment on dangerous driving.
The two limbs in Jurisic were:
* "A non-custodial sentence for ... s52A should be exceptional and ... confined to cases involving momentary inattention or misjudgment."
* "With a guilty plea, wherever there is present ... any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing GBH) should be exceptional."
Following consideration of Wong v The Queen (HC) & subsequent new statutory provisions on guideline judgments in the Crimes (Sentencing Procedure) Act 1999, the Court in Whyte reformulates the guidelines as follows:
* "A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment."
* "Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of GBH) would not generally be appropriate."
s52A Crimes Act 1900 - impact of Wong v The Queen (2001) 76 ALJR 79 on R v Jurisic and R v Henry guidelines - effect of new legislation on guideline judgments - ss37A, B, 42A CrimesSentencing Procedure Act 1999 considered - guideline not to be treated as rule or presumption - no incompatibility between Court issuing guideline and its role as repository of Commonwealth judicial power.
Whether sentence manifestly inadequate - delay in bringing appeal occasioned by reason of Whyte becoming, in effect, a test case with respect to guideline judgments.
Crown appeal dismissed.
370

BOUNDY, Steven Walter - CCA, 14.8.2002 - 132 A Crim R 482
Mason P, Hulme J, Smart AJ
Citation: R v Boundy [2002] NSWCCA 319
Crown appeal.
Supply commercial quantity cannabis leaf - 12m suspended upon entering GBB;
supply cannabis leaf; cultivate cannabis plants (13 plants) - 12m GBB.
Charges arose following the execution of a search warrant at respondent's house. Police found a large amount of green vegetable matter in a car & in various rooms of the house. The vegetable matter was identified as cannabis leaf. The total amount of cannabis leaf seized was 49.21 kgs, excluding the 13 plants. The actual saleable quantity of leaf was less, however, this was still a serious offence.
Whether sentence manifestly inadequate.
Appeal against 12m suspended sentence allowed: resentenced to 2*y PD with a NPP of 18m.
Appeal dismissed against sentence of 12m GBB.
371

NAL - CCA, 14.8.2002
Hidden & Adams JJ
Citation: R v NAL [2002] NSWCCA 346
Application for leave to appeal against sentence.
1 x aggravated sexual intercourse without consent.
3y 3m with NPP of 2y. (This sentence was cumulative on a NPP imposed by another judge for 2 other sexual crimes.)
The circumstance of aggravation was that the victim, the applicant's step-daughter, was under 16 at the time, namely 13 years. The sexual intercourse was digital penetration.
No other details given.
Application for leave to appeal dismissed.
372

DILESKI, Robert - CCA, 21.8.2002 - 132 A Crim R 408
Hidden & Adams JJ
Citation: R v Dileski [2002] NSWCCA 345
Sentence appeal.
1 x accessory after the fact to murder.
5y with NPP of 3y.
The principal offender murdered his employer at the factory where he worked. He hid the deceased's body & contacted the applicant who came to the factory. At the offender's request, the applicant went to a nearby bank to cash a cheque drawn on the deceased's account. He returned to the factory & stayed there while the offender went to the same bank to cash another of the deceased's cheques. While he was there a friend of the deceased called at the factory to see the deceased. Applicant told him deceased had left half an hour earlier. Suspicious about deceased's safety, police were called & eventually deceased's body was discovered.
Error by primary judge in particularising the offence - assistance to authorities.
Appeal allowed: resentenced to 2y with NPP of 1y.
373

NGUYEN, Duc Hung - CCA, 21.8.2002
Hidden & Adams JJ
Citation: R v Nguyen [2002] NSWCCA 333
Sentence appeal.
Supply commercial quantity heroin.
4y with NPP of 3y.
Following a surveillance operation, police seized approx 423 grams of heroin at premises. Applicant had attempted to dispose of some of the heroin down the kitchen sink & his wife had tried to dispose of a block of heroin by flushing it down the toilet. In an electronically recorded interview, applicant told police he had found that block of heroin in a plastic bag with a note which instructed him to deliver it, upon receipt of a phone call, in exchange for $2,000.
Aged 35 at time of offence - born in Vietnam, left at age 23, spent 2 years at resettlement camp in HK before arriving in NZ, where he married - family came to Australia some months before offence - experienced financial hardship - wife pregnant with 3rd child - applicant unable to obtain employment, received limited social security benefits - financial position exacerbated by gambling losses - no priors.
Special circumstances.
Appeal allowed: 4y sentence confirmed, NPP reduced to 2y.
374

TREGLIA, Giovanni Johnny - CCA, 21.8.2002
Hidden & Adams JJ
Citation: R v Treglia [2002] NSWCCA 338
Sentence appeal.
Perjury.
4y with NPP of 3y.
The charge arose from evidence which applicant gave in June 1995 at his trial with his co-offender for 3 charges of armed robbery & 2 charges of assault. Both men were alleged to have been involved in a violent home invasion in November 1994. Applicant & the co-offender gave evidence of an alibi & called witnesses in support of it. Both were acquitted. It was only at that stage that investigating police became aware that a listening device had been installed in the applicant's cell in December 1994 & that it had recorded a conversation between him & his co-offender in which both men acknowledged having been present at the home on the occasion in question.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 3y with NPP of 18m.
375

SILVA, Keith Edward - CCA, 21.8.2002
Hidden & Adams JJ
Citation: R v Silva [2002] NSWCCA 332
Sentence appeal.
Home invasion type offence: 1 x enter dwelling house with intent to commit serious indictable offence, namely AOABH; 2 x AOABH.
Total of 3y with NPP of 1y.
Applicant & co-offender burst into the home of a 66 year old pensioner & assaulted him & 2 of his visitors who were there at the time. They demanded money & drugs. They left with about $200 in coins taken from a bedroom.
Aged 34 at time of offences - lengthy criminal record including drug offences, offences of dishonesty & offence of violence - previously been dealt with by every sentencing option other than full time custody - subject to 2 GBBs at time of offences - drug addiction.
Whether sentence excessive.
Appeal dismissed.
376

HARDMAN, Jamie Ronald - NSW SC, Simpson J, 14.8.2002
Citation: DPP v Hardman [2002] NSWSC 714
Question of law.
Possess loaded firearm in a public place.
Police evidence was that, shortly after midnight on the morning of 15.9.2001 (and in the company of others) they were patrolling an area when they encountered the defendant's vehicle, which they stopped in order for them to inspect animal carcasses he was transporting. One of the police officers requested defendant to produce his firearm for inspection. He then passed a rifle to the police officers. It contained ammunition, however, prior to passing the gun from the vehicle, the defendant removed the bolt. The magistrate gave extempore reasons for his conclusions that the prosecution had failed to make out a prima facie case. There were 2 main factors in his decision. The first was that he held that the MV in which the defendant had possession of the firearm when in its loaded state (before being disarmed by the defendant) had not been shown to be a public place (although there was no question that the street on which it was stopped was a public place). The second concerned a conclusion that, at the time the defendant passed the gun from inside the vehicle to the police officers (and therefore to or over a public place) it was no longer loaded.
Whether a MV, when in a public place, is or is not itself a public place.
Order of magistrate dismissing the information quashed; matter remitted to LC to be dealt with in accordance with orders & reasons.
377

NGUYEN, Freedom - CCA, 21.8.2002
Giles JA, Dunford & Greg James JJ
Citation: R v Nguyen [2002] NSWCCA 342
Reasons for dismissing conviction appeal (see also R v Nguyen [2002] NSWCCA 267).
Robbery in company.
Identification evidence - application to withdraw evidence - unfair prejudice - appropriate identification directions - point not taken at trial - Rule 4 - exculpatory statements in ERISP - whether appropriate jury be directed on relevance of absence of cross-examination - accused did not give evidence - appropriate direction - inapplicability of earlier decisions after HC decision in Azzopardi & Davis v The Queen.
Appeal dismissed.
378

DUDKO, Lucy - CCA, 20.8.2002 - 132 A Crim R 371
Spigelman CJ, Simpson J, Blanch AJ
Citation: R v Dudko [2002] NSWCCA 336
Conviction and sentence appeal.
Count 1: Rescue inmate in lawful custody by force (s.32 Correctional Services Act 1952);
Count 2: Assault member of crew of an aircraft (s.206(a) Crimes Act 1900);
Count 3: Detain for advantage (s.90A Crimes Act);
Counts 4&5: Unauthorised possession of a firearm (s.7(1) Firearms Act 1996).
Sentenced to total of 10y with NPP of 7y.
Appellant helped her de facto (Killick) to escape from gaol using a hired helicopter. She forced the pilot to comply at gun point.
Whether jury influenced by pre-trial media coverage - whether certain evidence correctly admitted - whether directions adequate - whether co-offender required to testify where issue was exclusive possession by co-offender - whether trial judge removed questions of fact from jury's consideration.
Whether doubly punished where use of force was element of 2 offences - whether parity with co-offender - comparison where co-offender sentenced for additional offences.
Appeal dismissed.
379

MITTON, Roger William - CCA, 30.7.2002 - 132 A Crim R 123
Beazley JA, Bell J, Smart AJ
Citation: R v Mitton [2002] NSWCCA 124
Conviction appeal; & leave to appeal against sentence.
2 x sexual intercourse without consent.
Total sentence of 5y with NPP of 3y.
Appellant was originally indicted for 2 x sexual intercourse without consent & 1 x attempted sexual intercourse without consent. He was convicted on counts 1 & 2, acquitted on count 3 (attempt sexual intercourse). All 3 counts related to the same complainant, who was aged 16 at the time of the offences. Complainant made complaint to her mother on the morning following the alleged offences & police were contacted. Complainant said she struggled with appellant & tried to push him away. Appellant denied complainant had struggled with him at any time. He denied that she had pushed him away. He said that at the first indication that she did not wish to continue sexual contact, he desisted. He said that prior to this, she had not said anything to indicate that she was not consenting.
Requisite knowledge - consent - proof beyond reasonable doubt - requisite standard - whether misdirection on requisite mental element.
Conviction appeal dismissed. Application for leave to appeal against sentences dismissed.
380

GIOVANNONE, Philip - CCA, 14.8.2002 - 140 A Crim R 1
Mason P, Hidden J, Carruthers AJ
Citation: R v Giovannone [2002] NSWCCA 323
Conviction and sentence appeal.
2 x pervert the course of justice.
Total of 18m with NPP of 9m (3m FT for 3rd count; cumulative 15m with 6m NPP for 2nd count); + $200 pecuniary penalty pursuant to s.24(1) Confiscation of Proceeds of Crime Act 1989.
Appellant was charged with 3 counts, however, the jury returned a verdict of not guilty on the 1st count.
Having been exposed as a police officer who engaged in corrupt activities, Trevor Haken agreed to meet appellant with a view to obtaining evidence of corruption for the Royal Commission into the NSW Police Service. Haken was fitted with a listening device & a meeting between him & the appellant was witnessed by 2 Royal Commission surveillance officers. The counts upon which appellant was convicted involved him asking Trevor Haken to provide protection from arrest for another man & giving Trevor Haken $200 as an inducement to show favour towards appellant. The count upon which he was found not guilty alleged that he asked Trevor Haken to speak to a person with the Australian Federal Police with a view to removing his (appellant's) name from an Australian Federal Police brief.
Whether duplicity between charges - whether indictment bad in law - conduct which forms part of course of justice - whether requisite mens rea and actus reus open to the jury - poor quality listening device recording - enhanced version of recording - whether enhanced copy is a 'copy' of a 'document' for the purposes of the Evidence Act 1995 - purported transcript of recording admitted on the basis of being an aide-memoire - whether admissible to prove the contents of the conversation - relationship evidence - tendency and propensity evidence - suitable directions to be given to jury - whether full-time incarceration appropriate - cumulative sentences - objective seriousness.
Conviction appeal on count 3 allowed: conviction & sentence quashed.
Appeals on count 2 dismissed.
Commencement date varied for sentence of 15m with NPP of 6m on count 2.
381

McVITTIE, Leslie John - CCA, 13.8.2002
Giles JA, Wood CJ at CL, Levine J
Citation: R v McVittie [2002] NSWCCA 344
Crown appeal.
Supply prohibited drug (methylamphetamine); + Form 1 offence taken into account (supply cannabis leaf).
3y with NPP of 2y, sentence ordered to be served partially in full-time custody, partially in periodic detention, giving an effective sentence of 15m full-time custody, 7m PD and 12m parole.
Over a 2 month period, telephone conversations were monitored which showed that respondent was engaged in a substantial business of selling methylamphetamine & cannabis leaf. The supply was significantly to dealers who then on-sold. Respondent admitted he undertook the supply in order to make money. Although individual quantities of the drugs were not large, it was a commercial operation of some considerable scale. Respondent was arrested & placed in custody, bail refused. He obtained bail some 15m later. The conditions of bail included that he report daily to the Mt Druitt police station, which he did. Sentencing judge gave respondent credit of 2 month's imprisonment for this reporting condition, stating in his R/S that respondent had 'had quite onerous reporting conditions in respect of a considerable period of time, which, whilst not equating to full time imprisonment, is still an interference with his liberty for that period of time'.
Aged 51 at time of offences - guilty plea - lengthy criminal history - previous imprisonment.
Query whether could order partial PD - particular errors in seeing self-interest as contrition and giving credit of 2 months' imprisonment for a reporting condition whilst on bail.
Whether sentence manifestly lenient.
Appeal allowed: resentenced to 3*y full-time custody with NPP of 2y 4m.
382

CLISSOLD, Ian Raymond - CCA, 19.8.2002
Hodgson JA, Simpson J, Smart AJ
Citation: R v Clissold [2002] NSWCCA 356
Crown appeal.
AOABH - FT 4y.
Manslaughter - partially cumulative 14y with NPP of 8y.
Total effective sentence of 16y with NPP of 10y.
For details of offence, see R v Clissold [2002] NSWSC 429.
Accumulation of sentences - special circumstances - judge not bound to adhere to three-quarters rule for total sentence - wide discretion for sentencing judge - correct construction of s.44 Crimes (Sentencing Procedure) Act 1999.
Appeal dismissed.
383

SMR - CCA, 1.7.2002
Mason P, Hidden J, Carruthers AJ
Citation: R v SMR [2002] NSWCCA 258
Conviction appeal.
1 x act of indecency; 1 x indecent assault; 2 x attempt sexual intercourse without consent in circumstances of aggravation; sexual intercourse in circumstances of aggravation.
Sentenced to total of 8y with NPP of 4y.
The Crown case was based on circumstantial evidence.
Above offences were perpetrated upon an 82 year old woman living alone in a unit.
Aged 19 at time of sentence - offences committed when appellant aged 17.
Evidence tendered - directions - whether miscarriage - cogency of fingerprint evidence - whether Longman direction required - whether fresh evidence by independent fingerprint expert should be admitted.
Appeal dismissed.
384

SHEW, David Michael - NSW SC, Greg James J, 15.8.2002
Citation: R v Shew [2002] NSWSC 724
Judgment.
Trial by judge alone.
Murder.
Accused killed his parents & his brother. At the police station, he referred to being "Inca" from the Amazon or Colombia. In his other responses to the police, he showed a sufficiently bizarre pattern of behaviour as to enable even a lay identification of his being mentally ill.
Suffered from a treatment-resistant variant of schizophrenia for many years - delusions - auditory hallucinations - believed voices told him to kill his parents & brother.
Not guilty by reason of mental illness.
385

CQD - NSW SC, Hidden J, 23.8.2002
Citation: R v CQD [2002] NSWSC 732
Remarks on Sentence.
1 x detain for advantage; 1 x conceal a serious offence.
The offender pleaded guilty to the above charges. He was aged 16 years at the time of the offences. Almost everyone else involved, including the victim, was a juvenile at the time. The 1st charge related to offender's limited participation in events which culminated in the murder of a young man, the 2nd charge arises from the offender's failure to say anything to police about the murder until he was interviewed some months later. The deceased was escorted from a coffee shop in Bankstown by a number of young men, taken to a station wagon & driven to a nearby park where he was seriously assaulted. He was then driven to a house where offender & another man lived. Deceased was placed in a bedroom of the house. The offender kept watch on him for several hours & during that period heard one of the young men say that he was to be killed. The deceased was later taken from the bedroom to the garage of the premises where one or more of the other men attempted to strangle him with wire. Offender went to the garage but when he saw what was being done, he ran back to the house. One of the men returned to the house saying deceased was unconscious but not dead. The other men drove deceased to a construction site where he was stabbed a number of times. His body was found on the site the following morning.
Remorse - assistance to authorities - also provided police with information about another unrelated murder he had witnessed - gave evidence at trial about that matter & convictions were obtained - special circumstances.
Sentenced to total of 3y with NPP of 16m.
386

H - CCA, 28.8.2002 - 132 A Crim R 551
Ipp AJA, Dunford & Bergin JJ
Citation: R v H [2002] NSWCCA 355
s.5F appeal against interlocutory order dismissing application for a permanent stay of proceedings.
Buggery.
Offence alleged to have been committed upon applicant's son. He had previously entered a guilty plea to one count of indecent assault upon his daughter & was placed on a 4y bond. A charge of assault with intent to carnally know was 'no-billed'.
Abuse of process - delay.
Appeal dismissed.
387

JOINER, Patrick - CCA, 28.8.2002 - 133 A Crim R 90
Hodgson JA, Simpson J, Smart AJ
Citation: R v Joiner [2002] NSWCCA 354
Conviction appeal.
Murder.
18y with NPP of 13*y.
On 8.10.2000, appellant & deceased attended a wedding of deceased's cousin. Because of some difficulty between deceased & her family, appellant & deceased did not take part in photographs after the wedding, nor did they attend the reception. Instead, they went to the Brighton RSL Club, arriving at about 3.30pm. The deceased left the club just after 6pm & appellant followed her about half a minute later. They then drove to the Bundeena area. An altercation ensued between them on a bush track & deceased died. Appellant put her body into the boot of the car & drove away. At about 9pm, the car ran out of petrol. Appellant called the NRMA. The car was towed to Bulli & petrol was obtained. Appellant then drove the car to Abercrombie Street, Redfern & left it there, unlocked & with the keys in the ignition. The body of the deceased was still in the boot. Between that time & 26.10.2000, appellant told family members, acquaintances, media & authorities that deceased had driven alone from the RSL Club & that he had not seen her since. However, at about 1.45pm on 26.10.2000, appellant's lawyers faxed a document to police which was signed by appellant, wherein he made admissions of having struck his wife. He maintained he did not intend to harm her. Police then located the car & found the deceased's body in the boot. The Crown case was that appellant killed his wife by assaulting her violently with an intention either to kill her or to cause her GBH. In support of this case, it relied on evidence concerning injuries to her body, evidence of the relationship between appellant & his wife, various aspects of the conduct of appellant on 8.10.2000, & tendency evidence based on evidence from 3 other women with whom he had had relationships. The Crown also relied on lies told by appellant, not as evidence of consciousness of guilt, but as damaging his credibility.
Circumstantial evidence - tendency evidence - probative value & prejudicial effect.
Appeal dismissed.
388

CARRICK, Stuart - NSW SC, Buddin J, 9.8.2002
PARKES, Leslie James
Citation: R v Carrick; R v Parkes [2002] NSWSC 707
Remarks on Sentence.
Carrick: Assault; maliciously inflict GBH; AOABH.
Parkes: 3 x malicious wounding.
Each of the offenders took part in a prolonged & brutal attack upon deceased, who was intellectually impaired. Each offender was originally charged with murder. The murder charges were 'no billed'& each pleaded guilty to the charges listed above. A post mortem revealed that at the time of death, deceased was found to be suffering from meningitis, pneumonia & overwhelming sepsis. It was not suggested that either offender was aware of the existence of those conditions.
Subjective features - contrition - admissions - mental & physical health - alcoholism - prospects for rehabilitation - special circumstances.
Necessity to observe requirements of Pearce v The Queen (1998) 194 CLR 610.
Carrick: Total sentence of 5y with NPP of 2y 9m (made up of concurrent & cumulative sentences).
Parkes: Total sentence of 5y with NPP of 2y 9m (made up of concurrent & cumulative sentences).
389

OFFER, Paul Michael - CCA, 20.8.2002
Mason P, Dowd & Buddin JJ
Citation: R v Offer [2002] NSWCCA 341
Conviction and sentence appeal
GBH - 10y FT ; murder - 34y with NPP of 25y.
At the time of sentencing, 3 offences of solicit to murder were taken into account.
The GBH offence involved appellant shooting the victim in the head with a bolt from a crossbow when she answered the door of her home. Appellant had intended killing the victim's husband. The victim suffered severe head & brain injuries & now suffers from permanent semi-paralysis of her right side, lack of peripheral vision to her right side, slurred speech, major depression, insomnia, alternating mood swings, impaired concentration. The murder charge arose from the shooting of the deceased. Investigating police revealed a connection between the shooting of the deceased & the female victim's husband in that they were both witnesses for the prosecution in court cases wherein appellant faced certain charges. Police conducted an extensive search of appellant's property, whereupon a considerable amount of weapon paraphernalia was recovered, including a pistol silencer, a gun cleaning kit, crossbows with metal shafts & vanes & a 9mm Luger pistol (the murder weapon) loaded with 7 live rounds. Also found was a laser sight with instructions for attachment to a crossbow.
Appellant asserted he had been overborne by his counsel into pleading guilty.
Appeal dismissed.
390

PARKER, David John - CCA, 22.8.2002 - 132 A Crim R 413
Sheller JA, Hidden & Howie JJ
Citation: R v Parker [2002] NSWCCA 330
Application to change pleas of guilty to pleas of not guilty on counts 2, 4 & 5
Sentence appeal on count 1.
Appellant pleaded guilty to 5 counts of offences against ss.24(2) & 25(1) & (2) of the Drug Misuse and Trafficking Act 1985. Count 1 was for knowingly take part in the supply of a large commercial quantity of methylamphetamine - 13y with a NPP of 10y; counts 2, 4 & 5 were for knowingly take part in the manufacture of a large commercial quantity of methylamphetamine - 6y, 7y & 7y FTs. Count 3 was not raised in the appeal.
Sentencing judge found appellant had played a significant role in the manufacture & supply of methylamphetamine over several years. He was not a mere courier, a main part of his role involving the storing & transporting of the drugs.
Application to change pleas of guilty to not guilty - meaning of 'step in process of manufacture' - R v BD [2001] NSWCCA 184 considered - impossibility of manufacture - error in applying Pearce v The Queen [1998] 194 CLR 610 conceded - totality of sentences.
Refuse leave to change pleas of guilty to pleas of not guilty on counts 2, 4 & 5.
Sentence appeal on count 1 allowed: sentence quashed, resentenced on that count to 9y with NPP of 6y.
391

COUSINS, John Bernard - CCA, 23.8.2002 - 132 A Crim R 444
COUSINS, Patricia Grenda
Giles JA, Sperling & Greg James JJ
Citation: R v Cousins & Anor [2002] NSWCCA 340
Sentence appeal.
Possess precursor (pseudoephedrine).
J.B. Cousins: 3y 2m with NPP of 1y 8m.
P.G. Cousins: 2y 8m with NPP of 1y 4m.
Applicants were apprehended in Grafton. They were on a run from Queensland to Melbourne, stopping at every chemist along the way & buying a pack of Sudafed at each chemist. They claimed to have been given $700 by a person or persons in Queensland in order the buy the Sudafed on their behalf. However, they had a large sum of money on them at the time, well in excess of $700. Applicants claimed to be of modest means, each being in receipt of Social Security pensions.
J.B. Cousins aged 58 & P.G. Cousins aged 51 - neither had relevant prior convictions - both suffered ill health - both pleaded guilty at an early time - each received 20% discount for early plea - no previous imprisonment.
Error in failure to give adequate discount for utilitarian value of guilty pleas - sentencing after Cameron vThe Queen and before R v Sharma - whether sentences manifestly excessive.
Appeal dismissed in each case.
392

DORSETT, Adam - CCA, 14.8.2002
Dunford J, Carruthers AJ
Citation: R v Dorsett [2002] NSWCCA 326
Sentence appeal.
6 x armed robbery; + Form 1 offences (4 x armed robbery; 1 x demand money with menaces).
Concurrent 12y with NPP of 8y on each count, taking into account Form 1 offences.
Applicant armed himself with a knife, went into various business premises & threatened employees with the knife in order to obtain cash. In most cases, the knife was pointed at or shown to the victim. Applicant was on parole for similar offences at the time. All above offences were committed over a period of 3* weeks. Applicant was desperate for money at the time to feed his heroin addiction.
Aged 32 at time of offences - guilty pleas - lengthy criminal history - previous imprisonment.
Whether sentences excessive - failure to impose separate discrete sentences for each offence as required by Pearce v The Queen (1998) 194 CLR 610.
Appeal allowed: sentences restructured, giving an effective total of 12y with NPP of 8y.
393

CHEATHAM, Stephen Darcy - CCA, 29.8.2002
Smart AJ, Beazley JA, Bell J
Citation: R v Cheatham [2002] NSWCCA 360
Conviction and sentence appeals.
2 x murder; 1 x wound with intent to murder.
Sentenced to total of 24y with NPP of 16y.
This was an appeal following a retrial (see R v Cheatham [2001] NSWSC 580).
Appellant mistakenly believed that he was infected with AIDS & had infected his wife & 2 daughters. He wrote several letters, took a knife from the kitchen & stabbed his sleeping wife 6 times, then stabbed his 3 year old daughter 20 times. He attempted to kill his 3 month old daughter, whom he stabbed twice.
At the 1st trial, a defence of mental illness was rejected by the jury & appellant was duly sentenced. It was common ground that there was no basis for leaving the possibility of an alternative verdict of guilty of manslaughter on the murder charges. An appeal to the CCA held that this deprived the accused of an opportunity for a jury to consider whether or not he should be so considered & the matter was sent for retrial.
At the 2nd trial, the substance of the Crown case was not in issue. The primary issue was whether appellant had established upon the balance of probabilities that he lacked criminal responsibility by reason of mental illness. The appellant did not challenge the directions which the judge gave on this issue. Another issue was whether appellant had established upon the balance of probabilities the defence of diminished responsibility. Appellant complained that the judge did not adequately direct the jury as to that defence.
Directions as to diminished responsibility - critical issues left to jury - allowance for mental illness and sentence being served in protection.
Conviction appeals dismissed.
Sentence appeals for the murders allowed: resentenced to total of 22y with NPP of 14y.
394

SAUNDERS, Shane - CCA, 29.8.2002 - 133 A Crim R 104
Hodgson JA, Simpson J, Smart AJ
Citation: R v Saunders [2002] NSWCCA 362
Conviction and sentence appeal.
1 x dangerous drive causing death - 4y with NPP of 2y; 2 x dangerous drive causing GBH - 3y with NPP of 18m on each. All sentences to be served concurrently.
Crown case was that appellant was the driver of a Holden Commodore sedan, travelling in a northerly direction on the Pacific Highway, his de facto wife in the front passenger seat. Rain began to fall & soon became very heavy. Visibility was very poor. Appellant's vehicle collided with a campervan travelling in the south bound lane. The Commodore broke in half. One half continued to travel down the road, coming to rest 51 metres north of the campervan. Appellant's de facto was thrown from the Commodore & died. Her body was found 38 metres north of the campervan. The occupants of the campervan suffered grievous bodily harm. Speed at which appellant was travelling was estimated at being 90-100 & about 130 kph. The speed limit applicable to the section of the road on which the impact occurred was 100 kph.
Test when determining dangerous drive - distinction between negligence and dangerous drive.
Appeal allowed: new trial ordered.
395

GOSLING, Amos - CCA, 29.8.2002
Heydon JA, Levine & Adams JJ
Citation: R v Gosling [2002] NSWCCA 351
Conviction appeal.
Murder.
16y with NPP of 12y.
The deceased was shot during an attack by 4 men as pay-back for the alleged insulting behaviour of the deceased towards the mother of one of the offenders. Crown case was that the gun was fired by the appellant. Appellant admitted that the act of firing the shotgun was voluntary & not accidental. His culpability was somewhat reduced due to a mental disorder. Evidence of being manipulated to some significant degree by the son of the woman allegedly insulted.
Adequacy of directions - intent - abnormality of mind - intoxication and mental disturbance - whether risk that jury only considered intoxication.
Appeal dismissed.
396

FYFFE, Stanley James - NSW SC, Barr J, 29.8.2002
Citation: R v Fyffe [2002] NSWSC 751
Remarks on Sentence.
Murder.
Offender & 2 co-offenders were prisoners. The 3 men killed another inmate with a sandstone block weighing more than 6 kgs & a half-brick. Most of the injuries were to the deceased's head. There were some abrasions to the hands, wrist & forearms consistent with deceased trying to defend himself.
Aged 33 at time of murder - long criminal history - a number of prison terms - cannabis use - addicted to heroin - previous alcohol abuse - markedly paranoid personality attributes - depressive & self-focus predisposition - highly anxious, hypervigilant, suspicious & wary - deprived upbringing - suffered physical abuse from father - continues to deny offence - without remorse. See also Hore below.
Retribution - punishment - community protection - deterrence.
Sentenced to life imprisonment.
397

HORE, Anthony John - NSW SC, Barr J, 29.8.2002
Citation: R v Hore [2002] NSWSC 749
Remarks on Sentence.
Murder.
Offender & 2 co-offenders were prisoners. The 3 men killed another inmate with a sandstone block weighing more than 6 kgs & a half-brick. Most of the injuries were to the deceased's head. There were some abrasions to the hands, wrist & forearms consistent with deceased trying to defend himself.
Aged 34 at time of offence - powerful & well-built - long criminal history - previous killing for which he was sentenced to life imprisonment, later applied for redetermination of sentence - history of violence within gaol system - assaulted 2 female prison officers - treated for depression - overdosed on heroin in prison - unstable behaviour oscillating between episodes of self-harm & aggression with violence towards others - anti-social personality disorder - denied offence - claimed was being used as a 'scapegoat' - without remorse. See also Fyffe above.
Retribution - punishment - community protection - deterrence.
Sentence to life imprisonment.
398

TOGIAS, Nicolitsa - CCA, 30.8.2002 - 132 A Crim R 573
Hodgson JA, Simpson J, Smart AJ
Citation: R v Togias [2002] NSWCCA 363
Crown appeal.
Import commercial quantity MDMA (ecstasy).
3y suspended sentence.
Respondent arrived at Sydney Airport on a flight from Bali, carrying 8,282 tablets of MDMA (Ecstasy), amounting to almost double the commercial quantity of MDMA, having an estimated street value of about $400,000.00. She entered a plea of guilty in the LC & was committed to the DC for sentence some months later, whereupon the sentencing judge was informed that the respondent was 5* months pregnant. The sentencing judge adjourned the proceedings until 2 months after the baby girl was born. The proceedings were further adjourned so that evidence could be obtained as to whether, in the event of imprisonment, continuity of contact between respondent & her baby daughter could be maintained. When the matter next came on for hearing, evidence was given that whilst there was a facility within the prison system in which respondent could care for her daughter if sentenced to full-time imprisonment, acceptance into that facility was dependent upon an assessment which would take a number of weeks, during which respondent would be separated from her daughter. A psychologist gave evidence that such a separation would be absolutely traumatic for the baby. The sentencing judge then imposed the 3y suspended sentence.
This was the 2nd Crown appeal & the 4th sentencing hearing which the respondent faced.
Serious problems in sentencing mothers with babies - hardship to child - exceptional circumstances.
Appeal dismissed.
399

ADAMSON, Gerald Jon - CCA, 26.8.2002 - 132 A Crim R 511
Beazley JA, Bell J, Smart AJ
Citation: R v Adamson [2002] NSWCCA 349
Sentence appeal.
1 x manslaughter; 2 x aggravated sexual assault.
Total of 14y with NPP of 10*y.
Appellant pleaded guilty to the above offences which occurred virtually simultaneously. The deceased was asphyxiated during the course of the sexual assaults as a result of appellant placing his hand over her mouth & nose to stop her calling for help. The offences were not premeditated. Appellant was aged 19 at the time of the offences.
Whether sentence manifestly excessive - whether special circumstances - relevance of statistical information - non-parole period - youth of offender - mitigating factors - general deterrence - rehabilitation - whether applicant punished twice for the same criminal conduct - partially accumulated sentences.
Appeal dismissed.
400

MAMAE, Junior Vaa - CCA, 23.8.2002
Hodgson JA, Simpson J, Smart AJ
Citation: Mamae v Regina [2002] NSWCCA 352
Conviction and sentence appeal.
Manslaughter.
6y with NPP of 4y.
Deceased was walking home after an evening of drinking & placing bets at a club. He stopped off for some pizza then fell asleep. The Crown alleged that when he left the pizza shop at about 12.10 am, he was assaulted by the appellant & the co-offender. The co-offender punched the deceased several times to the head. When he fell to the ground, the co-offender kicked him several times to the lower body. The Crown alleged the appellant also kicked the deceased several times to the head. This allegation was the central issue at trial. Pathologist found a lot of bruising, abrasions & lacerations on deceased's body, predominantly around his head, as well as evidence of some haemorrhages around & inside the brain which indicated some trauma to the brain. She said she thought the cause of death was multifactorial. Deceased was suffering from heart disease at the time. He had an enlarged heart & had slowing of the arteries. He had a blood alcohol level of 0.285. The injuries he received were consistent with him having been punched and/or kicked. At least 8 blows were required to produce the injuries. There was no issue at trial as to cause of death. Appellant maintained that whilst he was present during the assault, he did not participate in it himself.
Directions - verdict of guilty of manslaughter unreasonable & not supported by the evidence.
Appeal allowed: conviction quashed, verdict of acquittal entered.
401

GUIDER, Michael Anthony - NSW SC, Wood CJ at CL, 28.8.2002
Citation: R v Guider [2002] NSWSC 756
Remarks on Sentence.
Manslaughter.
Killing of Samantha Knight in 1986. Offender picked up victim & took her somewhere. Victim died after being drugged with Normison. Her body was never recovered. No details of offence were provided by the offender. Series of sexual offences committed on young children over 15y years which involved using stupefying drugs in order to take photographs & commit sexual acts upon them.
Aged 52 at time of sentence -dysfunctional background - denied offence for long period of time - no insight into offending - strict protection - dangerousness - compulsive paedophile.
Sentenced to 17y with NPP of 12y.
402

SLD - NSW SC, Wood CJ at CL, 30.8.2002
Citation: R v SLD [2002] NSWSC 758
Remarks on Sentence.
Murder.
The young offender broke into a neighbouring home at night & abducted a 3 year old sleeping girl. He removed her nappy, took her outside, removed her nightgown & stabbed her once in the chest, then discarded her body in long grass. Offender misled police during inquiries. This was a callous & cold-blooded killing, the motive unclear.
Aged 13y 10m at time of offence - plea of guilty - seriously affected by background of upheaval, abuse & lack of emotional support - intellectual & speech disability - dysmorphic appearance - sexually abused by half-brother - disturbed & problematic individual - history of aggressive & unacceptable behaviour - significant level of future dangerousness, although difficult to assess at this stage.
Sentenced to 20y with NPP of 10y.
403

KANAAN, Michael - NSW SC, Wood CJ at CL
MAWAS, Rabeeh
EL ASSAAD, Wassim
Citation: R v Kanaan, Mawas, El Assaad [2002] NSWSC 774
Remarks on Sentence.
Murder.
Gangland killing of a notorious & vicious principal in an extensive criminal organisation involved in drugs & protection. The victim was gunned down by Kanaan & Mawas. El Assaad acted as the lookout, advising the other offenders of victim's movements. The motive for the killings was to improve own criminal activities. Use of firearms an aggravating circumstance.
Kanaan: Principal - hardened criminal.
Mawas: Reacted badly to death of mother at age 16y - suicidal & drug addiction - follower, not initiator.
El Assaad: Close family - exposed to anarchy & violence in Lebanon - prospects of rehabilitation - immaturity
Sentenced as follows:-
Kanaan: Life imprisonment.
Mawas: 25y with NPP of 19y.
El Assaad: 24y with NPP of 18y.
404

FEAR, Wayne Frederick - CCA, 29.8.2002
Hidden J, Newman AJ
Citation: R v Fear [2002] NSWCCA 361
Sentence appeal.
2 x armed robbery; 3 x BE&S; 1 x possess shortened firearm; + 10 further offences on a Form 1.
Total sentence of 12y with a NPP of 9y.
All offences were committed over a period of a little less than 2 years. The armed robberies were committed at bowling clubs. In each case, applicant was armed with a tomahawk & was in the company of a co-offender who was also armed with either a revolver or a replica pistol. The BE&S offences were committed in commercial premises. On each occasion, applicant was in the company of a co-offender. All offences were planned & executed professionally. Substantial sums of money were stolen, most of it never recovered.
Aged between 36 & 38 at time of offences - early guilty plea - fairly long criminal record - contrition.
Whether failure to give sufficient weight to subjective features - whether error in failure to find special circumstances.
Appeal dismissed.
405

BOND, William Charles - NSW SC, Greg James J, 30.8.2002
Citation: R v Bond [2002] NSWSC 786
Application to withdraw plea of guilty to murder.
Pressures on accused person such that integrity of plea impugned.
Application to withdraw plea of guilty permitted - plea vacated.
406

HOLTON, Trevor Edward - NSW SC, Davidson AJ, 23.8.2002
Citation: R v Holton [2002] NSWSC 775
Remarks on Sentence.
Murder.
The prisoner was charged with murder, with an alternative charge of manslaughter. He pleaded not guilty to the 1st count but guilty to the 2nd count, in that he caused the death of the deceased by an unlawful & dangerous act, namely his manner of driving a MV which crashed into the deceased. Deceased was a serving member of the NSW Police Service. The prisoner was convicted on the murder count. Although the Crown opened its case on the basis of the prisoner having caused the death with an intention to kill or inflict GBH or with reckless indifference to human life, ultimately the case was left to the jury as one of reckless indifference to human life.
Sentenced to 16y with NPP of 12y.
407

FARRELL, Stephen Patrick - NSW SC, Sperling J, 30.8.2002
Citation: R v Farrell [2002] NSWSC 752
Judgment on fitness to be tried.
Murder.
Accused stabbed his sister, causing her death.
Chronic paranoid schizophrenia - possibly suffered a drug-induced psychosis - intelligent - educated - good understanding of functions of legal system - rejects the fact that he suffers from a mental illness.
Accused unfit to be tried.
409

ZULUAGA-GOMEZ, Obiel Antonio - CCA, 4.9.2002
Handley JA, Simpson & Bell JJ
Citation: R v Zuluaga-Gomez [2002] NSWCCA 358
Sentence appeal.
1 x knowingly concerned with the importation of a trafficable quantity of cocaine - 6y;
1 x knowingly concerned with the importation of a commercial quantity of cocaine - 9y cumulative.
The effective total sentence was 15y with a NPP of 9y 9m.
The 1st charge related to applicant offering $12,000 to a man to take delivery of 2 DHL Express mail packages which contained reels of audiotape. Concealed within the reels was a quantity of powder weighing 1.766 kgs, with 1.153 kgs being pure cocaine. The packages were consigned to Sydney from Ecuador. Extensive electronic & visual surveillance revealed applicant's role in the importation. The 2nd charge related to a consignment of batteries addressed to applicant. These batteries contained cocaine. The total quantity of powder was 15.67 kgs, with 9.0166 kgs being pure cocaine.
Early pleas of guilty - financial gain.
Whether technical error in fixing NPP - whether error in directing sentence imposed with respect to 2nd count be wholly consecutive to that imposed with respect to 1st count - sufficiency of discount allowed for assistance to authorities.
Appeal allowed: resentenced on 1st count to 5y; resentenced on 2nd count to cumulative 7y; NPP of 8y.
410

GJF, GFF, KHF - NSW SC, Barr J, 22.8.2002
Citation: R v GJF, R v GFF, R v KHF
Judgment.
Judge alone trial.
The 3 accused were charged with murder.
The Crown alleged that each of the accused, acting together, inflicted injuries upon the deceased, causing her death. GJF & GFF entered pleas of not guilty on the grounds of mental illness, KHF pleaded not guilty.
Defence of mental illness.
Deceased was 35 years old when she was killed. Accused claimed they believed deceased to be Satan.
All 3 accused found not guilty by reason of mental illness.
411

TRINDALL, Mark Anthony - CCA, 30.8.2002 - 133 A Crim R 119
Spigelman CJ, Grove J, Smart AJ
Citation: R v Trindall [2002] NSWCCA 364
Crown appeal against alleged inadequacy of orders made by trial judge.
Robbery in company
During the hearing before the sentencing judge, the Crown conceded that without the accused's admission there would have been no Crown case. Respondent was placed on a Griffiths remand to enable him to enter Namatjira Haven to undergo rehabilitation in order for the judge to assess the NPP to be fixed. Neither the Crown nor defence counsel drew the judge's attention to s.11 of the Crimes (Sentencing Procedure) Act 1999.
Aged 25 - long criminal history starting at age 9 - educated up to Year 7 - developed a heavy drug dependency - recent disclosure of being sexually assaulted as a child over an extended period by a family member - has a son aged 13 - lack of trust of people - significant artistic talent - potential to make a living from his work.
Whether jurisdiction to entertain Crown appeal - effect of s.11 Crimes (Sentencing Procedure) Act 1999 on previous law.
Appeal allowed insofar as matter remitted to the DC sentencing judge for the purpose of fixing a hearing date for the sentencing proceedings prior to 12.12.2002 and giving such other directions as shall seem fit. Recommendation that in future, where a judge fails to fix an adjourned date, either the Crown or defence should apply to him/her to do so.
(NB The Griffiths bond may survive within the new framework of the suspended sentencing regime.)
412

MERRITT, Paul Sidney - CCA, 2.9.2002
Beazley JA, Sully & Simpson JJ
Citation: R v Merritt [2002] NSWCCA 368
Conviction appeal.
Use offensive weapon to prevent lawful arrest.
3y with NPP of 2y 3m.
Crown case was that appellant was seen by police to be driving whilst disqualified. He was well known to them. Two weeks later, 2 police officers approached appellant's caravan to arrest him. They were in plain clothes & had arrived in an unmarked car. They called out that they were police & asked appellant to come outside. They then entered the caravan & found him hiding behind a curtain. He was told he was under arrest for driving matters, whereupon he tried to arm himself. Police temporarily disabled him with capsicum spray. Appellant regained his composure, armed himself with a fishing spear & threatened the police with it. The sharp parts of the spear came very close to the face of one officer. They backed out of the caravan & fell to the ground, all the while menaced by the appellant. Eventually, one police officer drew his service pistol. Ultimately, appellant left the caravan peacefully. He exercised his right to silence at the police station. Defence case was that appellant was not aware that the men who entered the caravan were police. They did not identify themselves to him & they attacked him.
The issue in dispute in the trial was the state of mind of the appellant.
Aged 22 years at time of sentence - prior record for resisting police - previous imprisonment - on bond at time of offence - dysfunctional upbringing marked with violence.
Question of what becomes a forcible entry - whether attempted arrest of appellant was lawful.
Appeal allowed: verdict of acquittal entered.
413

GALATI, Daniel Joseph - CCA, 4.9.2002
Handley JA, Simpson & Bell JJ
Citation: R v Galati [2002] NSWCCA 366
Crown appeal.
Maliciously inflict GBH; + Form 1 offences (2 x possess prohibited drugs).
3y with NPP of 1y PD.
In the early hours of a Sunday morning, respondent was with a group of other young people outside a hotel at Manly. For no reason, he karate kicked the victim to the side of his head. This was an unprovoked attack. Victim suffered severe injuries, underwent surgery, was in intensive care for 5 days & was finally discharged 6 days after that. He suffers ongoing problems.
Aged almost 22 at time of offence - prior criminal record - not previously imprisoned - supportive family.
Matters of aggravation - objective gravity of offence - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 3y PD.
414

HE, Fang Ziao (Phillip) - CCA, 29.8.2002
Handley JA, Simpson & Bell JJ
Citation: R v He [2002] NSWCCA 370
Sentence appeal.
Knowingly concerned with the importation of a commercial quantity of heroin (9.8 kgs pure); knowingly take part in the supply of a commercial quantity of heroin ((4.25 kgs).
Total of 23 years with NPP of 16y.
The judge found applicant participated at a very senior level, co-ordinating & directing the supply & distribution of the drugs at wholesale level. He was involved in the organisation in an advisory role, having a complete mastery of the organisational details of the enterprise, standing in the chain of supply between the principal who organised the importation into Hong Kong from mainland China & from Hong Kong to Australia, & the man in charge of local distribution in Sydney.
Guilty plea - totality.
Leave to appeal refused.
415

MURADIAN, Armine Nishan Estefo - CCA, 27.8.2002
Handley JA, Simpson & Bell JJ
Citation: R v Muradian [2002] NSWCCA 371
Conviction and sentence appeal.
Import trafficable quantity ecstasy tablets (452.9 grams pure).
5y 3m, with NPP of 3*y.
This was a circumstantial case. Appellant made no direct admissions of her knowledge of the contents of the suitcase she attempted to bring into Australia. The trial judge directed the jury that they had to be satisfied beyond reasonable doubt about the importation & that this had 2 components to it, the physical fact of the importation & the knowledge by the person said to have been responsible.
Whether error in law in directing jury as to mental elements of possession required on a charge of importing a prohibited import.
Appeal dismissed.
416

BURKE, Kerry John - CCA, 29.8.2002
Giles JA, Levine & Sperling JJ
Citation: R v Burke [2002] NSWCCA 353
Sentence appeal.
39 x fraudulent misappropriation; 11 x use false instrument.
Total of 10y with NPP of 7*y.
Over a period spanning a little more than 6 years, applicant operated as an investment adviser & an insurance broker. All the charges arose out of applicant's dealings with investment clients who entrusted him with money to invest on their behalf, usually in relatively safe investments or 1st mortgages on property. No money was so invested, despite applicant's written assurance to his clients. Instead, he deposited the monies into his own bank account. Many of his clients were elderly and/or retired people. The total amount of monies so diverted was $4,490,563. The use false instrument charges related to unauthorised withdrawals by the applicant of funds which were properly invested. The total amount in these charges was $923,150. These monies were again used by applicant for his own purposes.
Guilty plea - co-operation with authorities - whether reimbursement by 3rd party a relevant consideration - how 'fresh evidence'is to be taken into account on appeal - whether sentences manifestly excessive.
Appeal dismissed.
417

AUV, Chapsaroun - CCA, 9.8.2002
Meagher JA, Simpson & Howie JJ
Citation: R v Auv [2002] NSWCCA 375
Sentence appeal.
Import trafficable quantity heroin.
8*y with NPP of 6y.
The amount of heroin imported was 242.2 grams with a purity rate of 71% & a street value of $275,366.
No details of offence stated.
Aged 23 - earliest possible guilty plea - Australian citizen - no prior convictions since adulthood - provided confidential & reliable assistance to Australian police about importation of heroin into Australia from Cambodia.
Whether sentence manifestly excessive - whether NPP marks an excessive percentage of total sentence.
Appeal allowed: resentenced to 7*y with NPP of 5y.
418

K - CCA, 3.9.2002
Beazley JA, Sully & Simpson JJ
Citation: R v K [2002] NSWCCA 374
Application for stay of trial.
Applicant was facing trial for 2 charges, one under s.90A & the other under s.61J of the Crimes Act (NSW).
The basis of the application was that because of recent unprecedented publicity which attended a series of trials & subsequent sentencing of a number of youths of Lebanese origin for sexual assaults upon young Anglo-Saxon females, there was a risk of prejudice, such that applicant may not have a fair trial.
Aged 17 - of Lebanese origin - member of Muslim religion.
Prejudice - interests of justice.
Appeal allowed: temporary stay granted - matter to be re-listed to fix a trial date not before the conclusion of the sentencing of 'Y'.
419

ZAREI, Farshid - CCA, 2.9.2002
Hodgson JA, Simpson & Bergin JJ
Citation: R v Zarei [2002] NSWCCA 350
Conviction and sentence appeal.
Supply prohibited drug (cocaine) on an ongoing basis.
3y with NPP of 18m.
Appellant was arrested following a controlled police operation between 24.5.2001 & 6.6.2001 in Kings Cross.
Aged 33 at time of offence - born in Iran - came to Australia as a refugee in 1991 - no relatives in Australia - good work record - addicted to drugs at time of offence.
Allegations of misleading and negligent conduct against former solicitors - whether sentence outside range for offences under s.25A Drug Misuse and Trafficking Act 1985 (NSW).
Appeal dismissed.
420

WHITING, Andrew Terrance - NSW SC, Levine J, 6.9.2002
Citation: R v Whiting [2002] NSWSC 827
Remarks on Sentence.
Manslaughter (by unlawful and dangerous act).
Offender was charged with murder. He pleaded not guilty to murder but guilty to manslaughter, which was accepted in full discharge of the indictment.
The death of the deceased was caused by a single knife wound, following a violent domestic altercation. Offender & deceased had been in a relationship for 3 to 4 years. There was a history of violence between them. Evidence was admitted of offender being charged with one count of assault upon deceased in 1998. There was also evidence of 2 charges in which the offender was the victim of assaults by the deceased, the most recent of those charges relating to a malicious wounding of the offender only 4 months prior to the instant offence. With regard to the instant offence, evidence was admitted of offender being confronted by the deceased who had armed herself with a knife & some glass. In his attempt to disarm her, the deceased was stabbed.
Aged 35 at time of offence - criminal history including violent crimes since mid-teens - alcohol dependence & abuse - personality disorder with dependent traits - abnormality of mind at time of commission of offence, exacerbated by consumption of alcohol, exaggerating effect of underlying anxiety disorders - requirement for extended & special supervision - special circumstances.
Sentenced to 5y 4m with NPP of 3y.
421

SLATTERY, Carl Rodney - CCA, 4.9.2002
Hodgson JA, Hidden J, Smart AJ
Citation: R v Slattery [2002] NSWCCA 367
Conviction appeal.
Maliciously discharge firearm with intent to do GBH (shortened .22 calibre Stirling rifle).
Police were carrying out surveillance activities on a relatively large cannabis plantation which was situated some distance into rugged & isolated bushland. Their evidence was that they observed appellant & a dog approach towards them along a track on the other side of the creek which led to where they were concealed. They said appellant was carrying a shortened .22 calibre Stirling rifle & had a .38 calibre Webley and Scott pistol secured in his waistband. Police maintained appellant raised the rifle & discharged it in the direction of one of the police officers. The bullet hit a tree & pieces of bark hit the police officer in the cheek. Appellant was arrested a short time later. The rifle underwent ballistics tests, during which 3 test cartridges were fired which police maintained showed the same markings as that fired into the tree. During cross-examination, it emerged that the police were unable to produce the 3 test cartridges as those cartridges, the cartridge that had been discharged by the appellant & the rifle had been destroyed.
Fresh evidence - suffering amnesia, therefore not able to instruct trial counsel properly - vital evidence destroyed - fabricated police evidence - inadequate warning given as to effect on accused's conduct of case - Jones v Dunkel direction wrongly given as to 4 witnesses not called - whether previous acquittal on charges of cultivate commercial quantity cannabis plant, supply commercial quantity cannabis leaf, maliciously discharge firearm with intent to avoid lawful apprehension arising out of same incident negatived motive of guarding the crop.
Appeal allowed: verdict of acquittal entered.
422

VINCENT, Benjamin Michael - CCA, 6.9.2002 - 133 A Crim R 206
Hodgson JA, Simpson J, Smart AJ
Citation: R v Vincent [2002] NSWCCA 369
Conviction appeal, and application for leave to appeal against sentence.
Robbery using corporal violence; attempt dispose of stolen property.
Total of 7*y with NPP of 4*y.
Appellant pleaded guilty to the attempt dispose of stolen property offence. He pleaded not guilty to the rob offence, however, the jury returned a verdict of guilty
The robbery was perpetrated upon a chemist shop by the applicant & a co-offender. $400 was taken. The offenders made their getaway in a stolen vehicle. A young woman gave the registration number of the car to the man from the chemist shop & he reported those details to the police. Police stopped the car some hours later. The co-offender managed to run away & the applicant was arrested. Appellant denied committing the robbery.
Hearsay evidence - whether admissible - whether unreliability warning required - lies - whether relied on only as to credibility - whether directions adequate.
Conviction appeal dismissed, leave to appeal against sentence refused.
423

KING, Mathew James - CCA, 2.9.2002
Hodgson JA, Simpson J, Smart AJ
Citation: R v King [2002] NSWCCA 365
Conviction appeal.
Robbery whilst armed with offensive weapon.
7y with NPP of 5y 3m.
The above was the alternative charge, the appellant having been acquitted of the 1st charge (robbery whilst armed with dangerous weapon).
Crown case was that during the evening of the offence, the female owner of a seafood restaurant went to her car & was about to start it when she was accosted by a man already seated in the car. The man told her he had a gun & would use it to kill her if she lied to him. He also said he knew where she lived. The woman gave evidence that when she got into the car, she felt something being pushed against her which she thought was a steel pipe. Applicant ordered the woman to unlock the restaurant & demanded money. He was given the day's takings. He told the woman to sit on the floor, not to turn around nor look at him & to remain where she was after his departure. He also told her that when she reported the robbery to police, to give a description that did not fit him. He then left.
Identification evidence - visual - voice - directions - whether verdict unreasonable and not supported by the evidence.
Appeal dismissed.
424

SMITH, Neil - CCA, 10.9.2002
Wood CJ at CL, Howie J
Citation: R v Smith [2002] NSWCCA 378
Sentence appeal.
1 x supply prohibited drug on an ongoing basis (methylamphetamine); 1 x supply prohibited drug (cannabis leaf); + Form 1 offence (goods in custody).
Total of 4y with NPP of 3y.
Crown case depended upon intercepted telephone calls which showed that over a period of 2 weeks, applicant agreed on 6 occasions to supply methylamphetamine totalling 42.5 grams. These intercepts also showed that on 6 occasions he agreed to supply cannabis leaf totalling 70.4 grams.
Guilty plea - aged 33 at time of sentence - in gainful employment.
Objective criminality - whether undue weight given to quantity of drugs found at applicant's premises - no evidence of actual supply - whether error in finding applicant at upper end of scale of middlemen - antecedents - character evidence - special circumstances.
Appeal dismissed.
425

DBG - CCA, 10.9.2002 - 133 A Crim R 227
Meagher JA, Simpson & Howie JJ
Citation: R v DBG [2002] NSWCCA 328
Conviction appeal.
1 x sexual intercourse with person under 10; 1 x sexual intercourse with person aged 10-16.
Total sentence of 8y with NPP of 6y.
Complainant was aged 7 years when appellant engaged in vaginal intercourse with her. Appellant was living with complainant's mother at the time. Appellant again had vaginal intercourse with complainant when she was aged 11 years. At that time, appellant & complainant's mother were no longer living together & complainant was staying overnight at appellant's house. Complainant gave evidence that between the two occasions, similar incidents took place 'heaps'of times.
Directions - evidence of complaint - warnings - delay - insufficient particularity to differentiate offences from allegations of offences not charged - whether verdict unreasonable & not supported by evidence - miscarriage of justice.
Appeal allowed: new trial ordered.
426

PALU, Iteni Sivo - CCA, 17.9.2002 - 134 A Crim R 174
Levine, Hidden & Howie JJ
Citation: R v Palu [2002] NSWCCA 381
Crown appeal.
1 x maliciously inflict GBH.
Respondent had pleaded not guilty to the 1st count charged (maliciously inflict GBH with intent to do GBH) but guilty to the alternative charge of maliciously inflict GBH. On the day respondent came before the court for sentence, the sentencing judge adjourned the proceedings & granted bail. The order was made under s.11 Crimes (Sentencing Procedure) Act.
Adjournment under s.11 Crimes (Sentencing Procedure)Act unjustified - failure of sentencing judge to find facts before making order - effect of statements by offender in pre-sentence report - seriousness of offence - inevitable that a full-time custodial sentence had to be imposed.
Appeal allowed: Sentencing judge's order adjourning matter quashed. Order made that the matter be returned to the DC to be re-listed before the sentencing judge at the earliest opportunity. Respondent's bail continued to date fixed by the DC for further hearing of sentencing proceedings. Order made that a pre-sentence report be available for the hearing date.
427

MITCHELL, Steven Joseph - CCA, 10.9.2002
Wood CJ at CL, Howie J
Citation: R v Mitchell [2002] NSWCCA 380
Sentence appeal.
1 x sexual assault; 1 x common assault.
Total sentence of 5*y with NPP of 4y 1m 14d.
After a successful appeal against conviction on 3 offences, appellant pleaded guilty to 2 offences. He was originally convicted for kidnapping as well as the other charges & was sentenced to 6*y with a NPP of 4*y. His successful appeal against conviction resulted in a new trial being ordered. He subsequently pleaded guilty to the above charges only, which the Crown accepted in full discharge of the indictment.
Whether resulting sentence excessive in light of reduced criminality.
Appeal allowed: resentenced to total of 4*y with NPP of 3y 3m.
428

GLOVER, Robert William - CCA, 11.9.2002
Ipp AJA, Studdert & Dunford JJ
Citation: R v Glover [2002] NSWCCA 376
Conviction and sentence appeal.
2 x maliciously damage property by means of explosives.
8y with NPP of 6y.
Appellant had an ongoing disagreement with DOCS because of his son who kept running away. The son was suffering from Attention Deficit Hyperactivity Disorder. When appellant approached them for help, DOCS would tell him they could not help him as it was not a social issue & that he should contact the police. When he contacted police, they would tell him it was a DOCS problem. The Crown case was that appellant bought explosives & that he was responsible for an explosion which caused substantial damage to a building & the contents of an office within the building which was occupied by DOCS. The DOCS office suffered the majority of the damage caused by the explosion. In sentencing applicant, the sentencing judge took into account the potential risk of physical injury to persons who could have been walking past in the street at the time of the explosion.
Circumstantial evidence - directions - admissibility of evidence - public interest immunity - results of execution of search warrant - potential physical injury to other persons. Whether sentence excessive - special circumstances.
Conviction appeal dismissed.
Sentence appeal allowed insofar as NPP reduced to 5y.
429

LEUNG, Michael Sui Kwan - NSW SC, Wood CJ at CL, 18.9.2002 - 134 A Crim R 187
Citation: R v Leung [2002] NSWSC 858
Remarks on Sentence.
1 x knowingly concerned in the importation of heroin; 1 x knowingly concerned in the importation of MDMA (ecstasy).
Accused entered a plea of not guilty. The jury returned verdicts of guilty on both counts, but acquitted the co-accused of similar charges. A container of canned pineapple pieces was imported into Australia from China. The drugs were concealed in some of the cans. Total weight of ecstasy was 131.58 kgs of 39.1% purity, equivalent to 51.47 kgs pure ecstasy. Total weight of heroin was 14.99 kgs of 71.4 % purity, equivalent to 10.7 kgs pure heroin. Estimated value of total amount of drugs was approx $8-15 million.
Aged almost 35y at time of offence - born in China - graduated from high school - migrated to Canada in 1989 - held down relatively menial part-time or casual work in Canada doing gardening, cleaning & removing garbage - gross income minimal, resulting in nil tax liability - in debt - undertaken educational courses whilst in custody in Australia - received certificates - married - 3 children - imprisonment occasioning hardship & distress to family - no priors - kidney problem.
Sentenced to total of 20y with NPP of 14y.
430

DICKSON, Brett Neville - CCA, 5.8.2002 - 132 A Crim R 137
Meagher JA, Simpson & Howie JJ
Citation: R v Dickson [2002] NSWCCA 327
Crown appeal.
1 x aggravated robbery occasioning GBH; 1 x aggravated robbery (ABH); 1 x escape lawful custody.
Total of 3y with NPP of 18m.
Respondent escaped custody with 3 co-offenders whilst serving sentences for a number of offences. They forced their way into a vehicle, hitting a male passenger & dragging him out of the car. They then repeatedly beat him. The victim suffered a fractured cheekbone, lacerations & bruising to face & body, requiring hospitalisation in intensive care & reconstructive surgery. The female driver of the car was pushed to the ground, hit, kicked & stomped about the head. She suffered a deep laceration to her head & extensive bruising to her face & body requiring hospitalisation. During the course of the assault, one of the co-offenders took the keys to the car & the 4 men then left in the vehicle, leaving the victims lying in the gutter. Respondent surrendered to police some 5 days later following a single vehicle accident involving victims' car. He admitted stealing money & a number of items which were in the vehicle. At the time of the appeal, the 3 co-offenders had not yet been dealt with.
Aged 27 at time of offence - serving a sentence at the time - multiple priors including driving, violent, property, weapons offences - previous imprisonment.
Variation of statutory ratio without finding of special circumstances - whether sentence manifestly inadequate.
Appeal allowed: sentenced to total of 8y with NPP of 5y 9m.
431

MARRAH, Wati Myown - NSW SC, Levine J, 17.9.2002
Citation: R v Marrah [2002] NSWSC 862
Remarks on Sentence.
Manslaughter (unlawful and dangerous act).
Offender was charged with murder. He pleaded not guilty to murder but guilty to manslaughter.
Offender, who was a shearer, killed a work associate. He assaulted him during an argument about money. The offender left the deceased on the side of the road, unaware of the fatality of the assault.
Aged almost 37 at time of offence - guilty plea - middle to upper range for assault of this type - elements of pre-meditation - smaller victim - prior assault offences - no previous imprisonment - need for anger management - good prospects of rehabilitation.
Sentenced to 6y 5m with NPP of 4y 9m.
432

HOWARTH, Colin - CCA, 23.9.2002
Buddin J, Smart AJ
Citation: R v Howarth [2002] NSWCCA 387
Sentence appeal.
Assault with intent to rob whilst armed with offensive weapon.
8y with NPP of 6y.
Applicant made a '000' call to police from a telephone booth in Lake Heights, falsely reporting a domestic dispute in progress at the Primbee Post Office & telling police that one of the participants had just fired a shot from a gun. Police made their way to that post office. Applicant then walked across the road to the Lake Heights Post Office & entered it, wearing a balaclava & carrying a knife. He confronted the male victim with the knife & demanded money from him. The victim activated the hold-up alarm. Applicant grabbed the victim & continued to demand money. Another male entered the post office & ordered applicant to let the victim go. Upon leaving the premises, applicant threatened this male person, then ran across the street. The male person caught the applicant & detained him until police arrived.
Deliberately set out to get caught by police - had not eaten for several days - had nowhere to live - was short of money.
Aged 44 at time of offence - guilty plea - deprived background - suffered considerable violence from father - significant health problems - prior conviction for armed robbery - on parole for that offence at time of instant offence - prior offences of stealing, possess prohibited drugs & drive whilst under the influence of alcohol - drug problem - addiction to poker machines - significant element of personal deterrence.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 6*y with NPP of 4y 10m.
433

COHEN, Christopher Lawrence - CCA, 12.9.2002
Santow JA, Hidden & Adams JJ
Citation: R v Cohen [2002] NSWCCA 339
Conviction and sentence appeal.
Aggravated BE & commit serious indictable offence (offensive weapon (knife); corporal violence; knowing persons present); 2 x BE & commit serious indictable offence (AOABH); 3 x indecent assault.
Total of 8y with NPP of 6y.
Armed with a knife, appellant broke into a country post office & residence, woke the post-master & his wife, then demanded money from the safe. He was given the day's takings (estimated at $4,400). He also stole money from the wife's handbag. He then indecently assaulted the wife. In an ensuing struggle with the two victims, he bit both of them, causing injuries. Appellant went to his girlfriend's home where he told her he had to leave town because he had "done something silly." The next morning she found $3,100 in cash which had been hidden by appellant under a pile of clothing. The post-master had previously seen the appellant in the post office some "50 or 100 times". He told police the attacker was "one of the Cohens" & later identified appellant from police photographs. Appellant's fingerprints were found on the window frame through which he entered the premises. The knife left at the scene provided DNA evidence consistent with appellant's profile.
Aged 27 - Aboriginal descent - on parole at time of offence - prior record for offences involving violence, robbery, BE&S - alcohol dependence - past addiction to heroin - emotionally unstable behaviour - anti-social & self-focused attitudes - adamant refusal to undertake treatment - no remorse or contrition.
Whether money seized from home of accused was relevant - admission of conversation between accused & witness - admission of identification evidence - whether such evidence went to identity of accused - whether error in directions on circumstantial evidence - failure to direct as to suspicion of guilt being insufficient - failure to provide direction as to flight - severity of sentence - special circumstances.
Appeal dismissed.
434

GB - CCA, 14.2.2002
Wood CJ at CL, Sully & Dowd JJ
Citation: R v GB [2002] NSWCCA 11
Conviction and sentence appeal (application for extension of time).
1 x indecent assault: + Form 1 offences (2 x indecent assault).
Applicant touched the victim on her vagina from outside her clothing during a game of hide & seek.
Aged 24 at time of offence - priors for stealing, assault, contravening AVOs, obtain money by deception - previous imprisonment.
Whether sentence indication hearing improperly sought unilaterally by Crown - inadmissible evidence placed before court for sentence indication - corrupt legal advice - improperly pressured into pleading guilty - criminal conspiracy to pervert course of justice in order to obtain victim's compensation - guilty plea unlawfully obtained by fraud & duress.
Appeal dismissed.
435

ROBINSON, Christopher Andrew - CCA, 25.9.2002
Giles JA, Dunford & Greg James JJ
Citation: R v Robinson [2002] NSWCCA 359
Sentence appeal.
Murder. (See R v Robinson [2000] NSWSC 972.)
45y with NPP of 35y.
Police found deceased's body in his unit. He had suffered massive blunt injuries to the head with large fractures to the skull & extensive fracturing of the facial bones. His body had been extensively mutilated with a knife, the chest cavity having been cut open & the body partially disembowelled. There were multiple stab wounds & cuts to the trunk, including approx 10 stab wounds in the left lung & well over this number in the small bowel mesentery & the attached small bowel, which had been partially torn from its mesentery in a number of locations. The left testis had been amputated & was found in the kitchen sink. Deceased's hands were tightly tied with electric power cord which had also been wrapped around his neck. The pathologist was of the opinion mutilation was done after death.
Evidence of extreme cruelty to animals - liking for 'extreme morbid stimulation'- 'bizarre fantasies & unusual tastes, including pleasure in killing'- 'extremely dangerous and disturbed person'.
Aged 17 at time of offence - guilty plea - significance of youth - would be worst case but for age.
Appeal allowed insofar as NPP reduced to 27y.
436

COE, Mathew Leslie - CCA, 25.9.2002
Giles JA, Dunford & Greg James JJ
Citation: R v Coe [2002] NSWCCA 385
Conviction appeal.
Robbery with violence; + Form 1 offence (supply prohibited drug).
4*y with NPP of 2y 3m.
Principal Crown witness was walking along King Street in Newtown when he saw a man run across the road, hit an Asian man who had a scooter & then ride off on the scooter. The witness reported the matter to police, identifying appellant as the offender, saying that offender was an acquaintance.
Identification of accused as offender - not sure at trial - witness cross-examined as unfavourable witness - directions - right to silence - failure to inform police of alibi when arrested - questions by trial judge - whether a miscarriage of justice - summing-up - judge summarised Crown submissions on fact - submission not available in law - failure of judge to correct.
Appeal dismissed.
437

CORBETT, William George - CCA, 1.10.2002
Handley JA, Sully J, Smart AJ
Citation: R v Corbett [2002] NSWCCA 402
Supplementary Judgment.
The Court gave judgment on 19.4.2002 allowing in part the appellant's appeal against conviction & sentence ((see R v Corbett [2002] NSWCCA 137). Appellant lodged an application for Special Leave to Appeal to the HC & his solicitors wrote to the Registrar drawing attention to the CCA's failure to deal with Ground 2 of appellant's grounds of appeal.
Evidence - credibility - s.108(3) Evidence Act - prior inconsistent statement - prior consistent statement - discretion - leave of Court.
Orders pronounced by Court on 19.4.2002 confirmed.
438

McARTHUR, Joanne Lee - CCA, 25.9.2002
Buddin J, Smart AJ
Citation: R v McArthur [2002] NSWCCA 390
Sentence appeal.
Supply prohibited drugs (methylamphetamine) on an ongoing basis; + Form 1 offence (possess cannabis leaf).
14m with NPP of 7m.
An undercover police officer purchased methylamphetamine from appellant on 4 separate occasions during the course of a controlled operation. He paid applicant $70 or $80 on each occasion for 1 gram of methylamphetamine, although the actual weight varied between 0.9g & 1.0g. The drugs had a purity of 7 to 7.5%. At the time, appellant was making the drug transactions on behalf of her friend who was hospitalised. On each occasion she passed the money on to her friend. When he was discharged from hospital, she ceased assisting him.
Aged 38 at time of offence - guilty plea at first available opportunity - sincere contrition - mother of 4 children - volunteer at local school - good employment history - prior drug offence - no previous imprisonment.
Special circumstances - hardship on children - significant efforts at rehabilitation - exemplary conduct in custody.
Appeal allowed: sentence reduced to 10m with NPP of 5m.
439

HO, Man Kong - CCA, 25.9.2002 - 133 A Crim R 340
Wood CJ at CL, Sully & Dowd JJ
Citation: R v Ho [2002] NSWCCA 379
Sentence appeal.
Knowingly take part in supply of large commercial quantity prohibited drug (heroin).
5y with NPP of 3*y.
Appellant was observed by police retrieving a backpack from a parked vehicle. He then drove off in his own vehicle. He became aware police were following him & stopped his vehicle & approached them. Police searched appellant's car. The backpack was found to contain 4.05 kgs heroin.
Aged 21 at time of offence - married with young child - difficult childhood - good character - gambling addiction - voluntary rehabilitation - contrition - full & frank admissions - considerable assistance to authorities - no priors.
Adequacy of discount for assistance & guilty plea - adequacy of consideration of subjective matters - parity - whether sentence manifestly excessive.
Appeal dismissed.
440

HUA, Bieu Vinh - CCA, 12.9.2002
Wood CJ at CL, Smart AJ
Citation: R v Hua [2002] NSWCCA 384
Sentence appeal.
Steal from the person; demand property with intent to steal.
Total of 3y with NPP of 18m.
After ordering male victim to follow him, applicant took the victim's wallet & removed a $50 note & the victim's bank key card. He also took the victim's mobile phone & demanded the victim's PIN number. The victim reported the matter to the police. The applicant approached another man the following day in a shopping mall & threatened that if he did not supply his name & address & give the applicant his wallet, he would be stabbed. The victim managed to escape & ran towards the shopping centre Police Shopfront Office with the applicant chasing him. When they entered the police office, the applicant was arrested & charged.
Aged 19 at time of offences - on parole at the time - high criminal activity over relatively short period - tragic childhood & dysfunctional family life - cannabis, cocaine & heroin addiction - priors include drug, dishonesty, property offences as well as assault - previous imprisonment.
Special circumstances - significant attempts at rehabilitation in custody - need for extensive period of supervised parole - accumulation of sentences.
Appeal allowed: sentenced to total of 2y 11m with NPP of 18m.
441

RCC - CCA, 25.9.2002 - 133 A Crim R 352
Wood CJ at CL, Sully & Dowd JJ
Citation: R v RCC [2002] NSWCCA 347
Conviction appeal.
AOABH.
4y GBB.
Appellant had been charged with 3 counts of AOABH, 1 count of attempted sexual intercourse without consent & 2 counts of sexual intercourse without consent. A jury acquitted him on all but one count of AOABH. The offence for which appellant was found guilty alleged that he put a length of rope around his de facto's neck, held it tight & said 'It would be easy to kill you, only take one pull of this rope'Victim was not able to breathe. Applicant then released the victim, whereupon he punched her in the eye, causing her to fall. When she retreated to the bathroom, appellant repeatedly pushed victim in the chest which caused her to fall & hit her head on the wall.
Failure to adequately direct on danger of convicting on evidence of complainant & to carefully scrutinise evidence of complainant - inconsistent verdict - verdict unreasonable & not supported by facts.
Appeal allowed: verdict of acquittal entered.
442

TURKMANI, Bassam - CCA, 23.9.2002 - 133 A Crim R 328
Buddin J, Smart AJ
Citation: R v Turkmani [2002] NSWCCA 388
Sentence appeal.
Knowingly take part in manufacture of methylenedioxymethylamphetamine (MDMA); + Form 1 offences (malicious damage, harbour escaped person).
Total sentence of 8y with NPP of 5*y.
Police surveillance revealed a rental premises being used as a laboratory for manufacturing MDMA. Associated chemical & scientific equipment was found there. A police surveillance video captured applicant as being in & around the rental premises. Whilst on bail some 2 years later, applicant was observed by police to be carrying suspicious items to & from some premises rented by his girlfriend. Upon executing a search warrant, police found chemicals & laboratory equipment associated with the production of drugs. A storage unit was found to contain chemicals & equipment for use in the manufacture of drugs.
Aged 18 at time of 1st offence - young offender easily influenced by older co-offender - early guilty plea - harsher than normal circumstances of incarceration including an assault upon applicant by prison officers (other prison officers who witnessed the incident had reported the assault & had given evidence during an inquiry) - classification as an 'extreme high risk'inmate - priors include assault police, goods in custody - previous imprisonment.
Appeal allowed in part: new total sentence of 7y with NPP of 4*y.
443

LANGTON, David John - CCA, 10.9.2002
Howie J, Smart AJ
Citation: R v Langton [2002] NSWCCA 382
Sentence appeal.
1 x affray; 3 x assault; 2 x perjury.
Total of 3*y with NPP of 3y.
Applicant & other off-duty police officers were involved in a brawl with a number of young men. When the young men were arrested, a senior officer supplied the off-duty officers with police-issued batons. The arrested men were made to leave the police truck & walk through 2 lines of police officers, including applicant, who struck them with the batons. The arrested men suffered quite severe injuries. Two of the arrested men were taken separately to an interview room & punched repeatedly by applicant & another officer. Applicant later struck another detainee in the stomach with a baton. Applicant gave evidence for the prosecution against the arrested men at a hearing & again at an appeal. On each occasion, he denied they were assaulted by various officers.
Aged 34 at time of 1st offence - lung disease - heavy drinker - work-related stress - rehabilitation - contrition - protective custody - priors include AOABH - no previous imprisonment.
Totality - whether cumulative sentences appropriate - whether special circumstances.
Appeal allowed in part, resulting in a total of 3*y with a NPP of 2y 3m.
444

ABBOTT, Brandon Thomas - CCA, 25.9.2002
Buddin J, Smart AJ
Citation: R v Abbott [2002] NSWCCA 389
Sentence appeal.
1 x assault police officer in execution of his duty; 1 x maliciously damage property.
Total of 3y with NPP of 6m.
During the course of an argument at a domestic residence, appellant took a number of knives from the kitchen out onto the verandah. One of the occupants called the police. When police arrived, applicant pointed a steak knife at them & held up a house-brick in the other hand. Police tried to placate applicant, whereupon he damaged the exterior walls of the house & broke 2 windows. He was eventually surrounded by police & arrested.
Aged 28 at time of offence - Aboriginal - dysfunctional childhood - extensive & well documented history of mental illness - recent suicide attempt - depression - on bail & recognizance for similar offences at the time - early guilty plea - intoxicated at time of offence - prior violent offences, driving, property & drug offences - previous imprisonment.
Strong subjective case - whether sentence manifestly excessive.
Appeal allowed: resentenced to total of 18m with NPP of 6m.
445

FOGG, Raymond Francis - CCA, 27.9.2002
Buddin J, Smart AJ
Citation: R v Fogg [2002] NSWCCA 395
Sentence appeal.
Supply prohibited drugs (methylamphetamine) on an ongoing basis.
4y 4m with NPP of 3y.
An undercover police officer purchased methylamphetamine from applicant & his wife on 6 occasions over a 3 week period. The total weight of the drug was 26.24 grams with a purity of approx 1.5%. Each sale ranged in weight from 0.94g to 13.8g. The total amount paid over the period was $1,050. During the final transaction, applicant agreed to supply the undercover officer with 1 ounce of amphetamine for $1,100, however, he was arrested prior to the completion of that transaction. Police conducted a search upon applicant's residence where they found electronic scales, glucose & resealable bags.
Aged 54 at time of offence - had forced wife to participate in drug supply business - tragic & troubled domestic life following death of child - history of mental illness - amphetamine addiction - priors include offences of violence, property & drug offences, false pretences - previous imprisonment.
Special circumstances - mental illness - ill-health (diabetes, hypertension) - whether sentence manifestly excessive.
Appeal allowed: resentenced to total of 3*y with NPP of 2y 3m.
446

AMBROSOLI, Richard Patrick - CCA, 30.9.2002 - 55 NSWLR 603; 133 A Crim R 461
Mason P, Hulme & Simpson JJ
Citation: R v Ambrosoli [2002] NSWCCA 386
Conviction appeal.
Malicious wounding; assault.
Total of 4y with NPP of 2y.
This case deals with the admissibility of a witness statement pursuant to s.65(2)(c) (made in circumstances that make it highly probable that the representation is reliable) & s.65(3) (representation made in the course of proceedings).
The charges arose out of a melee at a New Year's celebration. A witness gave a signed statement to police. At committal the statement was tendered & the witness cross-examined. At trial the witness failed to attend & the Crown tendered the statement & the transcript of the cross-examination.
Admissibility under s.65(2)(c) - admissibility under s.65(3).
Appeal dismissed.
447

MOUSSA, Victor Ian - CCA, 4.10.2002 - 134 A Crim R 296
Spigelman CJ, Howie J, Smart AJ
Citation: R v Moussa (No.2) [2002] NSWCCA 408
Application to re-open an appeal against conviction in order to argue a ground of appeal which was not relied upon when the CCA, differently constituted, dismissed applicant's appeal against his conviction: see R v Moussa [2001] NSWCCA 427; 125 A Crim R 505.
Fresh ground of appeal - failure to call 2 witnesses who were available to give evidence for the defence - whether miscarriage of justice.
Application granted: appeal re-opened & allowed, conviction & sentence quashed, new trial ordered.
448

FORSYTH, Michael - CCA, 23.9.2002
Buddin J, Smart AJ
Citation: Forsyth v R [2002] NSWCCA 393
Sentence appeal.
Dangerous drive occasioning death (drive in manner dangerous).
3*y with NPP of 2*y.
Abandonment of responsibility.
After drinking at a hotel until about midnight, appellant drove his car away from the hotel carrying 3 passengers. Before leaving the carpark he spun his wheels & revved his engine, then drove some distance up the road before making a U-turn & accelerating away in the opposite direction at approximately 100kph. He ignored warnings from passengers to slow down. When rounding a bend at excessive speed, the car went sideways, crossed the unbroken centreline, left the road & landed in a paddock on the wrong side of the road. Initially, appellant denied he was the driver. He also avoided being breath tested. The deceased was injured when the vehicle left the road & died in hospital.
Aged 26 at time of offence - father of small child - employed as truck driver - history of hospitalisation for depression - evidence of genuine remorse - no priors.
Jurisic applied - special circumstances.
Appeal allowed: sentenced to 3*y with NPP of 2y 3m.
449

BOURCHAS, Mario - CCA, 2.10.2002 - 133 A Crim R 413
Giles JA, Levine & Sperling JJ
Citation: R v Bourchas [2002] NSWCCA 373
Sentence appeal.
Attempt obtain possession of commercial quantity heroin.
8*y with NPP of 5y 1m.
Appellant was part of a highly organised syndicate involved in the large scale importation of heroin into Australia. He was recruited by the syndicate to pose as an employee of a courier company with instructions to collect the goods in which the heroin was concealed upon their arrival in Australia & deal with any matter connected with the subsequent clearance by Customs, then pass the goods on. The goods were imported from Hong Kong. Police substituted most of the heroin. Appellant collected the goods, placed some of the packages in the boot of a car, which was left unattended at a designated location. Prior to arrest, he had tried to hide the remaining heroin & bank documentation relating to payments to the courier company. The amount of heroin imported was 14.768 kgs with an average purity of 66.4%. The amount of pure heroin was 9.811 kgs. The estimated street value was $10,000,000.
Aged 30 at time of offence - guilty plea at earliest opportunity - married with young child - genuine remorse - hardship in custody - serving sentence in protection - prior driving offence - no previous imprisonment.
Considerable assistance to authorities - appropriate discount - statement to authorities on promise it would not be used against offender - impermissible use of statement by sentencing judge.
Appeal allowed: sentence reduced to 4y 11m, NPP 3y. To be released on expiration of NPP, subject to community service & undertaking to be of good behaviour.
450

HOLDEN, Craig Leslie - CCA, 27.9.2002
Buddin J, Smart AJ
Citation: R v Holden [2002] NSWCCA 397
Sentence appeal.
Supply prohibited drug (methylamphetamine); + Form 1 offences (2 x possess cannabis & cannabis resin; 1 x goods in custody).
Total of 4y with NPP of 2y.
Police executed a search warrant on applicant's home where they found 13 gel capsules containing amphetamine "ice" (2.3g) & 2 bags containing a total of 40.6g amphetamine. Also found were 2 bags of cannabis leaf & a small block of cannabis resin, as well as $345.10 in assorted denominations of cash.
Aged 23 at time of offence - difficult family life - dependent mother - income from drug supply used to support family - small quantities of drugs involved - not an extensive supplier - no indication of remorse - early guilty plea - drug addiction - need for rehabilitation requiring extensive supervision, advice & treatment - priors include property offences, possess prohibited drug, assault police, breach AVOs, assault - no previous imprisonment.
Special circumstances - youth - no discount for guilty plea - hardship in custody.
Appeal allowed: sentenced to 3y with NPP of 18m.
451

CLEGG, Kevin Daniel - CCA, 23.9.2002
Buddin J, Smart AJ
Citation: Clegg v R [2002] NSWCCA 394
Sentence appeal.
Breach of recognizance in respect of accessory after the fact to robbery being armed with an offensive weapon.
12m with NPP of 9m.
Applicant had originally been sentenced to 18m for robbery in company & was placed on a 3y GBB for the offence of accessory after the fact. An offence of drive whilst disqualified was taken into account on the robbery in company count.
Applicant's co-offender armed himself with a gun, entered a shop & robbed the proprietor of $300. Applicant drove the getaway car. Co-offender dropped some of the money & applicant picked it up.
Aged 20 at time of offence - multiple priors - previous imprisonment.
Accumulation of sentences - need to give effect to totality principle - longer NPP required.
Appeal allowed insofar as sentence backdated.
452

HINTON, Rebecca Valma - CCA, 4.10.2002 - 134 A Crim R 286
Wood CJ at CL, Sully & Howie JJ
Citation: R v Hinton [2002] NSWCCA 405
Crown appeal.
16 x defraud Commonwealth.
2*y suspended sentence.
Respondent was employed at Centrelink from 1992 as a customer service operator in the Youth Employment Services team. Between June 1999 & March 2000 she received either a Newstart Allowance or a Youth Allowance for each of sixteen identities that she had created. She was paid $78,593.77 in total over a 9 month period. The proceeds were placed into 3 bank accounts in the name of either herself, her then de facto partner or her daughter. This criminal conduct came to an end only when her employer discovered the fraudulent entries. Respondent claimed she spent the money gambling in order to escape an abusive relationship.
Guilty plea - 4 year old daughter has behavioural problems - impact of imprisonment on child - whether exceptional circumstance - objective seriousness - whether justified a suspended sentence - importance of general deterrence.
Appeal allowed: sentenced to 2y 2m with NPP of 14m.
453

DYERS - HC, 9.10.2002 - 210 CLR 285;76 ALJR 1552
Citation: Dyers v The Queen [2002] HCA 45
Conviction and sentence appeal. (See also R v Dyers [2000] NSWCCA 335
Sentence already expired.
In 1999, appellant was indicted on a charge of indecently assaulting a 13 year old girl 11 years earlier. Although the indictment alleged the offence occurred between specified dates, by the end of the prosecution case it was clear that it was alleged the assault had occurred on the morning of 29 July 1988. In an unsworn statement, appellant acknowledged he had seen the complainant that morning, but said it was only in the company of her mother & while he was otherwise engaged in meetings with others. His appointment diary recorded a number of appointments during the day. No appointment with the complainant was recorded. There were references to a meeting at 9:30am with 2 other persons, a meeting between 1:00pm & 3:00pm with several other persons, including the complainant's mother, as well as what was described as a "processing session" with a Ms Tinkler between 9:00am & 11:30am in a room called the "energy conversion room". Complainant swore appellant had indecently assaulted her in that room at the end of a "processing session" with her during the morning of 29 July 1988. Neither Ms Tinkler nor others who were recorded in the diary gave evidence at trial. In his directions to the jury, the trial judge said "you are entitled to draw the inference that the evidence of that witness would not have assisted the party who you have assessed should have called that witness'. However, immediately before giving that direction, the trial judge had told the jury that where it appeared there was a witness who could be expected to have been able to give some relevant evidence on some aspect of the case, but the witness had not been called, "you are not entitled to speculate upon what that witness might have said if the witness had been called".
Whether trial judge erred in directions to jury - delay in making complaint in relation to inferences that witnesses not called by defence would have assisted defence case - whether trial judge's directions on uncorroborated evidence satisfactory - whether failure of applicant to give sworn evidence was impediment to appeal - Longman v The Queen 168 CLR 79 considered - application of Jones v Dunkel 101 CLR 298 to criminal trials.
Appeal allowed: new trial ordered.
454

TKWJ - HC, 10.10.2002 - 212 CLR 124;76 ALJR 1579
Citation: TKWJ v The Queen [2002] HCA 46
Conviction appeal.
Aggravated indecent assault; aggravated act of indecency.
Alleged indecent assault of 12y old boy by appellant. The boy's sister also made allegations of sexual misconduct against appellant. Evidence of appellant's good character was not adduced at trial because it was feared that evidence of appellant's alleged conduct with sister would be led in rebuttal. Counsel did not consider seeking a ruling from the trial judge as to the admissibility of the sister's evidence.
Effectiveness of appellant's counsel - availability of pre-trial ruling as to likely exercise of judge's discretion to admit evidence - whether failure to lead evidence of good character or seek a ruling from the trial judge gave rise to a miscarriage of justice - whether appellate court must be satisfied that the trial might possibly have been different or would have been different to constitute a miscarriage of justice - consideration of miscarriage of justice.
Appeal dismissed.
455

INGRAM, Adam Phillip - CCA, 27.9.2002
Buddin J, Smart AJ
Citation: R v Ingram [2002] NSWCCA 398
Sentence appeal.
1 x robbery; + Form 1 offences (3 x obtain money by deception, 1 x BE&S).
3*y with NPP of 18m.
Applicant approached elderly victim after she had withdrawn $1,500 from the bank. He violently shook both the victim & her bag. Victim fell to the ground & applicant took her handbag. Two people, one of whom had witnessed the offence, grabbed the applicant & held him until police arrived. He was later searched & found to have $900 concealed in his pants. Victim suffered cuts & scratches to her hands & arms, as well as soreness to arms & shoulders.
Aged 21 at time of offence - guilty plea at earliest opportunity - genuine remorse - positive steps towards rehabilitation - on bond at time of offence - heroin user - drug free in custody - dysthymia & borderline personality disorder - priors include driving offences, shoplifting, drug offences, resist officer, offensive language, assault - previous imprisonment.
Sentence being served on protection - this was not envisaged at time of sentencing - Judicial Commission statistics - R v Henry referred to.
Appeal allowed: sentenced to 3y with NPP of 15m.
456

KATARZYNSKI, Kirstain William - NSW SC, Howie J, 3.10.2002
Citation: R v Katarzynski [2002] NSWSC 924
Remarks on Sentence.
Murder.
The deceased made indecent comments about female patrons at a pub. The offender took offence to these comments & an altercation developed. The offender subsequently shot the deceased.
Eyewitness evidence as to shooting.
Aged 33 at time of offence - intoxicated at the time - not normally a violent person - unfortunate early life - witnessed the suicide of his step-father - close relationship with mother - family support - steady employment - deceased the aggressor.
Sentenced to 24y with NPP of 18y.
457

KIRIKIAN, Zare Antin - CCA, 15.10.2002
Sperling & Buddin JJ
Citation: R v Kirikian [2002] NSWCCA 422
Sentence appeal.
2 x knowingly take part in supply of commercial quantity heroin.
Total of 6y with NPP of 3y.
Applicant's role in the above offences was that of a broker. He obtained access to the drugs on behalf of the purchasers, negotiating the transactions & arranging for payment & delivery. Each of the transactions was for the sale of 2 blocks of heroin. In total, the 4 blocks of heroin weighed 1.4 kgs with a street value estimated at $1.4m.
Aged 44 at time of offences - guilty plea - commenced using alcohol at age 10 - drug abuse - clinical depression - post-traumatic symptoms - on anti-depressant medication - troubled childhood - abusive father - priors include minor offences & supply prohibited drug - previous imprisonment.
Whether sentences excessive.
Appeal dismissed.
458

BROWNLOW, Peter Austin - CCA, 3.10.2002
Meagher JA, Sperling & Greg James JJ
Citation: R v Brownlow [2002] NSWCCA 404
Crown appeal.
2 x malicious wounding
Concurrent sentences of 15m with NPP of 5m.
Respondent armed himself with a machete, then travelled with several co-offenders to the house of his ex- de facto & her new partner. A brawl broke out at the house, during which respondent injured a visitor by unintentionally striking him on the elbow & in the abdomen with the machete, as a result of which he was unable to work for 10 months. Respondent also injured a co-offender when he grabbed him by the shoulder in order to pull him away from the fight & accidentally cut his ear with the machete. The ear was almost severed & required surgery.
Aged 23 at time of offences - below average intelligence - troubled childhood - domestic difficulties - history of drug & alcohol abuse - some attempts at rehabilitation - supportive family & employer - priors include low range PCA, larceny, malicious damage - no previous imprisonment.
Whether sentences manifestly inadequate.
Appeal allowed: each sentence increased to 2y 11m with NPP of 11m (concurrent).
459

YAGHI, Mohamed Rameh - CCA, 2.10.2002 - 133 A Crim R 490
Wood CJ at CL, Smart AJ
Citation: R v Yaghi [2002] NSWCCA 396
Sentence appeal.
Conspire to supply large commercial quantity heroin; + Form 1 offence (knowingly take part in supply of commercial quantity cocaine).
10y with NPP of 6*y.
Applicant was a serving police officer. He & 2 other men arranged to sell four 350 gram blocks of heroin to a dealer for $240,000. They, in fact, had no drugs & planned to steal the buyer's money, then use that money to buy heroin for further dealing. The Form 1 offence involved a genuine transaction of 16 oz (approx 480 g) of cocaine.
Aged 30 at time of offence - stress related to workplace harassment & internal police investigations - dereliction of duty & responsibility as a police officer - failed marriage - no priors - characterisation of offence where drug 'rip off'involved - prior good character - mental state.
Parity.
Appeal allowed: sentenced to 7*y with NPP of 5y.
460

MALEK, Naif (Nick) - CCA, 15.10.2002 - 134 A Crim R 423
Hidden J, Smart AJ
Citation: R v Malek [2002] NSWCCA 424
Sentence appeal.
Knowingly take part in supply of commercial quantity heroin - 8y with NPP of 4y; knowingly take part in supply of cocaine - 7*y with NPP of 4y (concurrent).
Applicant was the receptionist/bookkeeper/cashier at a brothel where drugs were supplied. He was fully aware of the sale of drugs to sex workers. Applicant's role in the operation was recording the amounts of drugs sold to the workers. His net salary was $740 per week.
In his remarks on sentence, the sentencing judge stated, 'The offender ... said to me that when he went there initially he was greedy ...'However, after stating that he hated drugs, what the applicant had said was that he needed a job & was thinking of himself when he went to work at the brothel, that he thought he could help but that in the end he found out that everybody was beyond help & that he felt sorry for them. He said that he needed a job 'because after a long time without a job you feel you're not good to society.'The sentencing judge had misquoted the applicant & misunderstood the drift of what he had said. The sentencing judge also stated that 'In my opinion involvement for a year in this sort of operation makes this an offence of the worst type'.
Aged in late 50s at time of offences -good character with no relevant convictions - convictions for petty offences - shoemaker by trade - 2nd wife took all his money - lost his business of nearly 20 years - son died of AIDS.
Failure to give adequate weight to subjective features - error in assessment of objective seriousness of offences - amount of heroin calculated to have been recorded by applicant was 604.935 grams - Judicial Commission statistics - whether sentences manifestly excessive.
Appeal allowed: resented on count 1 to 6y with NPP of 2y 9m & on count 2 to 5y with NPP of 2*y (concurrent).
461

RMK - CCA, 11.10.2002
Sperling & Buddin JJ
Citation: R v RMK [2002] NSWCCA 414
Sentence appeal.
Robbery whilst armed with offensive weapon; + Form 1 offence (robbery in company).
4y with NPP of 18m (to be served in a juvenile detention centre).
Applicant & his co-offender approached a couple sitting on a park bench. The co-offender asked if they had any money. The female victim felt threatened & handed over $10. The co-offender then asked the male victim if he had any money. When he replied he did not, both offenders produced knives. Co-offender put his knife to the victim's face & again demanded money. He cut the male victim on the cheek. Co-offender then pointed the knife at the female victim & said he could kill her. Applicant grabbed the female victim & took her some 10 metres away from the male victim & the co-offender. The male victim gave the co-offender $80. The co-offender made a stabbing motion at the male victim, causing him to grab the knife whereupon he sustained lacerations to his hands.
Aged 15 at time of offence - guilty plea at earliest opportunity - favourable subjective features - refugee from Sudan - significant steps toward rehabilitation - positive educational progress whilst in custody - no priors.
Whether sentence excessive - justifiable sense of grievance - co-offender received same sentence, despite having played a more significant role - co-offender a year older than applicant - reports concerning co-offender's progress in custody less favourable than reports about applicant.
Appeal allowed: sentenced to 3y with NPP of 15m (to be served in a juvenile detention centre).
462

NGUYEN, Hoang Minh - CCA, 3.10.2002 - 133 A Crim R 547
Meagher JA, Sperling & Greg James JJ
Citation: R v Nguyen [2002] NSWCCA 403
Conviction and sentence appeal.
Supply trafficable quantity prohibited drug (4.42 grams heroin).
3y with NPP of 2y 3m.
Police executed a search warrant at applicant's home. Upon a search of his person, they found heroin contained in 6 foils and 9 water balloons. He had on his person about $650 in cash. Police found $4,000 in cash in the bedroom of appellant & his wife. In another room, 24 small pure gold bars weighing 900 grams were located. The value of the bars was estimated to be $12,000. In the kitchen, police located empty water balloons. In the living room, they found pieces of silver foil, scales & a heroin smoking implement. The appellant was interviewed. He made no admission of actually supplying heroin or having it for the purpose of supply. He gave evidence to the effect that the heroin was other than for supply.
Statutory deeming effect - statutory defence - possession for use other than supply - relevance & admissibility of evidence of cash & gold bars to rebut defence - content of summing up - special circumstances - flawed directions regarding the giving of evidence by appellant - role of trial judge.
Appeal dismissed.
463

MISKI, Salim - CCA, 27.9.2002
Buddin J, Smart AJ
Citation: R v Miski [2002] NSWCCA 392
Sentence appeal.
Steal from the person; AOABH.
Total sentence of 4y with NPP of 3y.
Applicant approached victim in the street, grabbed his mobile phone, then left the scene with another male. Victim chased after them. Applicant gave the mobile phone to the other male, who ran off with it. Applicant told victim to give him money then he would get the victim's phone back. The victim agreed, whereupon applicant grabbed the victim & assaulted him. The victim suffered abrasions, swelling & a cut to his bottom lip. Applicant still demanded money from victim, victim agreed, then applicant requested victim to follow him, which he did. A civilian had observed the incident & reported the matter to police. Police attended & observed applicant & victim walking down the street. Applicant was arrested after victim identified him to police as his attacker. The mobile phone was valued at being worth $1,250.00.
Not quite 20 at time of offences - prior criminal history - on bail for matters of dishonesty at time of above offences - failure to comply with conditions of parole - still waiting to be sentenced for other matters at time of sentencing for above offences - dismal history featuring repeated breaches of court-based orders & failure to respond to supervision & counselling.
Whether sentence manifestly excessive.
Appeal allowed in part: new total sentence of 3*y with NPP of 2y 3m.
464

TARU, Herbert - CCA, 13.9.2002
Levine, Hidden & Howie JJ
Citation: R v Taru [2002] NSWCCA 391
Sentence appeal.
Attempt obtain possession of trafficable quantity cocaine. 4y 9m with NPP of 3y.
Applicant obtained permission from the proprietors of a studio in Campbelltown to receive parcels on his behalf. He told the proprietors the parcels contained sheet music. A courier satchel containing 101.8 grams of pure cocaine was intercepted by Customs officers, the contents substituted & the satchel delivered to the studio's address. Applicant took possession of the satchel then drove off with it. Police pursued him. Applicant attempted to escape from them by driving off the road, however, he lost control of the car & was arrested. Applicant's role was as a courier only.
Aged 24 at time of offence - supportive family - satisfactory employment record - genuine remorse - prior drug & driving offences - no previous imprisonment.
Whether sentence excessive - Judicial Commission statistics - Wong & Leung (1999) 48 NSWLR 340 followed.
Appeal dismissed.
465

HIGGINS, Paul Andrew - CCA, 2.10.2002 - 133 A Crim R 385
Wood CJ at CL, Howie J, Smart AJ
Citation: R v Higgins [2002] NSWCCA 407
Sentence appeal.
1 x impose on Commonwealth - 18m with NPP of 6m, conditional release, reparation of $52,599.26;
2 x impose on Commonwealth - 18m with NPP of 6m (concurrent).
To be released on s.20 recognizance.
Applicant committed Social Security fraud over a 5 year period. In all, he obtained $52,780.16. He made a number of false applications. He obtained $40,749.44 on a Newstart Allowance; $5,505.32 on a Jobsearch Allowance and $6,525.40 for Rent Assistance.
Aged 24 at time of 1st offence - methadone user - HIV - depression - contrition - priors include BE&S, receiving, stealing, drug offences - previous imprisonment.
Effect of ill-health on sentence - failure to apply Pearce v The Queen.
Appeal allowed insofar as individual sentences varied, however, this still gave a total of 18m with a NPP of 6m with release on s.20 recognizance & reparation of $52,599.26.
466

SIVYER, Christopher Anthony - CCA, 10.9.2002
Wood CJ at CL, Howie J
Citation: R v Sivyer [2002] NSWCCA 410
Sentence appeal.
2 x BE&S; 1 x enter dwelling with intent to steal; 1 x steal from a dwelling.
Total of 4*y with NPP of 2*y.
Applicant broke into a unit & stole a laptop computer which he then attempted to pawn; he broke into a locked room at a backpackers' hostel & stole a camera & lens which he pawned for $50; he was observed trying to open a door in another hostel & was apprehended by residents, then handed over to police; he broke into another backpackers' hostel & stole a camera which he attempted to pawn.
Aged 28 at time of 1st offence - guilty plea at earliest opportunity - on parole at the time - bipolar disorder - anti-social personality traits - drug dependency - priors include 88 convictions extending over 14 year period, mostly for dishonesty, drug offences & escape - previous imprisonment.
Cumulative sentence - totality.
Appeal allowed: new total sentence of 3y 9m with NPP of 21m.
467

TOWNER, Neville Raymond - NSW SC, 18.10.2002
Citation: R v Towner [2002] NSWSC 951
Redetermination of life sentence under s.13ASentencing Act1989.
Murder; attempt rape of child under 10.
Applicant lured a 4 year old girl into a bush area where he tried to have sexual intercourse with her. This resulted in a vaginal injury which caused the child to scream. Applicant silenced her by striking her a number of times, including with a rock. He then held her head under the water in a stream. When the child was dead, he placed her body in the stream so that it was totally immersed.
Redetermination under s.13A - principles applicable - sentences passed after redeterminations - offence not meriting 'life means life'- difference in nature between life sentence with parole & life sentence with no prospect of release - application of principles relating to NPP to fixing MT.
Application allowed: resentenced to MT 20y, AT of life imprisonment.
468

GIBSON, Troy Terrence - CCA, 3.10.2002
Wood CJ at CL, Sully & Howie JJ
Citation: R v Gibson [2002] NSWCCA 401
Conviction and sentence appeal.
Maliciously inflict GBH; AOABH.
Appellant & a co-accused were jointly tried, both having pleaded not guilty. Appellant was found guilty of the above offences, the co-accused not guilty.
Total of 4y 10m with NPP of 3y 4m.
Appellant was involved in a fight at a hotel. He punched the victim in the face. He subsequently left the hotel at the request of security staff & waited outside for the victim, then he & a group of co-offenders attacked him. Appellant punched the victim to the ground & one of the co-offenders punched the victim's friend to the ground. Appellant then aided & encouraged his co-offenders who kicked the 2 men about the head whilst they were on the ground. The victim suffered a number of catastrophic injuries, including serious head injuries resulting in brain damage, post-traumatic psychoses requiring psychiatric hospitalisation, permanent cognitive dysfunction & amnesia.
Aged 25 at time of offences - joint criminal enterprise - ringleader - previous good character - attempts at rehabilitation - no priors.
Need to complete university studies - delay in finalisation of matter - duty of Crown to call witnesses - whether miscarriage of justice.
Appeal dismissed.
469

GEORGE, Morres - CCA, 11.10.2002
Sperling & Buddin JJ
Citation: R v George [2002] NSWCCA 419
Sentence appeal.
Knowingly take part in supply of commercial quantity methylamphetamine; + Form 1 offences (2 x knowingly take part in supply of commercial quantity methylamphetamine).
4y with NPP of 3y.
Applicant's role was as middle-man, introducing purchasers to suppliers. For this he was paid $3,000. During a surveillance operation, police recorded telephone conversations between appellant & a co-offender arranging for large amounts of cash to be brought from Perth to Sydney in order for a different co-offender to purchase drugs which would ultimately be couriered to Perth by yet other co-offenders. Appellant was observed with co-offenders at premises from which the couriers were seen leaving with a blue bag. At Sydney Airport, police seized the blue bag which was found to contain 850.4 grams of methylamphetamine. The two Form 1 offences involved the same co-offenders.
Aged 60 at time of offences - priors include bribery, gambling offences, goods in custody, low range PCA, offensive behaviour, drive whilst unlicensed - previous imprisonment.
Early guilty plea - special circumstances - health problems, including heart disease, prostatism, diabetes, blockage of leg arteries, kidney failure - multiple medications & ongoing treatment required.
Appeal dismissed.
470

SALTAN, Ahmet - CCA, 30.9.2002
Spigelman CJ, Howie J, Smart AJ
Citation: R v Saltan [2002] NSWCCA 423
Conviction appeal.
Armed robbery.
Appellant & 3 co-offenders perpetrated a robbery upon a pawnbroker shop. Crown case was that there had been a joint criminal enterprise to rob the store at knifepoint & that each person had carried out the particular role assigned to him. The Crown case was that appellant was the instigator & organiser, had suggested the place to be robbed & had given the knife to a co-offender, who subsequently used it to wound the 2 owners. The Crown case was that appellant waited in the car while his 3 co-offenders carried out the robbery, that he was seated in the driver's seat & that it was he who drove the car away at considerable speed & through a red light. On the Crown case, the appellant could not enter the store because he was known to the owners.
Unreliable evidence - directions - use of word 'accomplice'- whether desirable - s.165 Evidence Act 1995 - 'unsafe & unsatisfactory'- where sworn evidence of alleged accomplices resiled from earlier statements inculpating accused.
Appeal dismissed.
471

O'BRIEN, Benjamin William - CCA, 25.9.2002
Buddin J, Smart AJ
Citation: R v O'Brien [2002] NSWCCA 411
Sentence appeal.
Take & drive conveyance without consent of owner; use offensive instrument to prevent lawful apprehension; aggravated stealing (maliciously inflict ABH).
Total of 6y with NPP of 4y.
Applicant stole a Holden Commodore sedan. When recovered, it had been extensively damaged with repairs costing approx $4,000. He was involved in a high-speed car chase with police which ended when 3 police cars blocked the road in front & behind appellant, forcing him to stop. Appellant attempted to ram the police vehicles out of the way, an officer became trapped & was crushed between 2 vehicles. When police managed to remove appellant from the stolen vehicle, he was found to have a blood alcohol reading of 0.12. He admitted the offence to police when interviewed. Appellant assaulted a man the following month at a bus stop, punching & kicking him about the head & face in an unprovoked attack. When victim fell to the footpath, appellant continued to kick him in the head & upper body. He stomped on his head & stole his backpack. Victim required stitches to an eyelid & suffered multiple cuts to his face, 2 black eyes & the loss of 4 teeth.
Aged 18 at time of offences - alcohol & marijuana addiction - psychological difficulties - dysfunctional family - intoxicated at time of offences - supportive family - some attempts at rehabilitation - serving a suspended sentence at the time of the offences - priors - previous imprisonment.
Whether error in taking into account strength of Crown case when assessing discount for plea of guilty.
Appeal dismissed.
472

TIMU, Gary Alexander - CCA, 15.10.2002
Sperling & Buddin JJ
Citation: R v Timu [2002] NSWCCA 421
Sentence appeal.
Aggravated BE & commit serious indictable offence (AOABH).
2y 3m with NPP of 9m.
The B&E was committed upon a dwelling house The circumstances of aggravation were that applicant knew at the time of the B&E that the victim was in the dwelling house. Applicant & victim had been in a relationship for 3 years. Applicant went to victim's house one evening, however, she refused to let him in & attempted to call the police. Applicant entered the house by forcing the front door then he unplugged the phone. He grabbed the victim by the hair & pushed the back of her head against the wall, then slapped her & punched her in the face & stomach. The victim sustained injury to her head, a cut on her mouth, minor bruising to her neck & wrists & a sore back. She lay awake all night, too scared to move, as the applicant slept beside her. Applicant left in the morning.
Aged 32 at time of offence - early guilty plea - genuine remorse - unlikely to re-offend - priors include robbery with assault - previous imprisonment.
Disputed facts of aggravation - burden of proof - standard of proof - lack of corroboration for complainant's testimony - whether sentence manifestly excessive.
Appeal dismissed.
473

BOLTER, Kate - CCA, 8.10.2002
Sully & Howie JJ
Citation: R v Bolter [2002] NSWCCA 435
Sentence appeal.
2 x BE&S.
Total of 4y with NPP of 3y.
The owner of premises, a 70 year old man, came upon applicant inside his premises. He asked her what she was doing there, whereupon she said she was looking for an elderly woman. She then left, after which victim discovered that $6 in coins had been stolen from his wallet. Later that evening, the victim's wife noticed that her engagement ring & eternity ring (valued at $1,710) were missing from a pill container which was beside the bed in a drawer. Police were advised of the thefts. Twelve days later, a female victim arrived home to find the applicant in her bedroom. When police later arrested & searched applicant, she was found to be in possession of a watch belonging to the female victim's grandchild.
Aged 20 at time of offences - pattern of unlawful behaviour - offences committed whilst on parole & subject to bail - need for condign punishment - priors include 4 x breach of bond, larceny, 2 x breach of parole - previous imprisonment.
Whether sentence excessive - youth - guideline judgments - Thomson & Houlton applied.
Appeal dismissed.
474

WAYNE, Reece Evan - CCA, 15.10.2002 - 134 A Crim R 142
Hodgson JA, Buddin J, Smart AJ
Citation: R v Wayne [2002] NSWCCA 426
Sentence appeal.
3 x defraud Commonwealth.
Total of 2y with NPP of 12m; release on s.20 recognizance after 12m, conditional on payment of reparation of $50,128.73.
Applicant received unemployment benefits or the Newstart Allowance for the period between July 1987 to January 2001. From 1996 onwards, he received the Newstart Allowance in 2 other names, as well as the original name. The total amount he received in those 2 names was $45,943.31.
Aged 43 at time of appeal - early guilty plea - genuine contrition - unlikely to re-offend -general deterrence - prior good character - voluntarily ceasing fraudulent activities - significance of pecuniary penalty order - no priors.
Special circumstances - hardship to family - wife in ill-health.
Appeal allowed only to the extent that the condition of the s.20 recognizance is deleted.
475

TUIFUA, Ngaha Koula - CCA, 15.10.2002
Sperling & Buddin JJ
Citation: R v Tuifua [2002] NSWCCA 420
Sentence appeal.
Steal from the person; armed robbery; + offences taken into account (AOABH, malicious damage, goods in custody).
Effective total sentence of 6y 20d with NPP of 4y 20d.
Applicant & another man gained entry to a unit & confronted 5 males. Applicant accused one of the victims of having sexual intercourse with his girlfriend & threatened them all with a dumbbell, telling them to stay away from 'the girls'He picked up a knife & chased one of the victims, then threatened another whilst pressing the knife to the side of the victim's neck. He then assaulted another victim. Applicant took 3 mobile phones & $25. On another occasion, applicant & a group of young men approached a man sitting in his car. Applicant & one male verbally abused the victim, then punched & kicked him about the head & upper body. When victim tried to drive away, he was again assaulted by the offenders. This victim received injuries to his face & arm, his back & neck were sore & he was bleeding from the ear. The offenders took the victim's mobile phone.
Aged 18 at time of offences - early guilty plea - on parole & recognizance at time of offences - violent & abusive father - evidence of rehabilitation - substantial criminal record, including offences of violence, drug & armed rob offences - subjected to various control orders, GBBs in the past.
Failure to give weight to guilty plea, rehabilitation, delay between date of offences & date of sentencing - error in application of principles of accumulation, concurrence & totality - whether sentences manifestly excessive.
Appeal dismissed.
476

DODD, David James - CCA, 11.10.2002
Meagher JA, Sully & Sperling JJ
Citation: R v Dodd [2002] NSWCCA 418
Conviction and sentence appeal.
Armed robbery.
7y with NPP of 4*y.
The victim was robbed at knifepoint in his own home by 2 assailants, both male Aboriginals. One assailant was a juvenile with whom the victim was well acquainted. The only issue of substance at trial was whether or not appellant had been correctly identified as the other assailant. The juvenile assailant was dealt with in the Children's Court. He was unwilling to give evidence against the appellant & was not called at the appellant's trial. Appellant did not give evidence at trial & made no out-of-court inculpatory admissions, although he maintained his innocence in out-of-court statements to investigating police officers. There were no fingerprints, DNA samples or other similar evidence capable of connecting the appellant with the robbery.
Warnings - directions - failure to adequately warn on dangers of relying on evidence of resemblance & identification - failure to give evidence - unbalanced nature of summing-up - conduct of trial - whether miscarriage of justice
Appeal dismissed.
477

MENDEZ, Priscilla Ingrid - CCA, 8.10.2002
Sully & Howie JJ
Citation: R v Mendez [2002] NSWCCA 415
Sentence appeal.
Maliciously inflict GBH.
4y with NPP of 2y 3m.
The victim was the ex-wife of applicant's boyfriend. The victim went to her ex-husband's residence after having consumed a large quantity of beer at a hotel. She & the applicant had an argument, during which applicant repeatedly struck the victim in the face with a heavy glass ashtray. Applicant pursued the victim to a waiting taxi, still hitting her about the head & body. Victim managed to get into the taxi & was taken to hospital. She suffered a fractured jaw, a shattered cheekbone & fractured eye socket. She required facial reconstruction involving 2 metal plates & 8 screws. She suffers permanent scarring & facial numbness.
Aged 22 at time of offence - tragic childhood - victim of abuse - history of alcoholism & heroin addiction - need for intensive alcohol rehabilitation & prolonged period of psychological counselling upon release from custody - on bail for a violent offence at the time - priors - no previous imprisonment.
Appeal dismissed.
478

ALLAN, Bernard Patrick - CCA, 4.10.2002 - 133 A Crim R 444
Wood CJ at CL, Howie J, Smart AJ
Citation: R v Allan [2002] NSWCCA 412
Conviction appeal.
1 x robbery in company.
4y with NPP of 2y.
Appellant had faced trial on 2 counts of robbery in company. The jury returned a verdict of not guilty on the 1st count & a verdict of guilty on the 2nd count.
Appellant & others accosted 2 men. Appellant took the 1st victim's wallet & mobile phone while the other victim was being accosted & his belongings searched by other offenders. The 1st victim later gave evidence that during this time he was pricked with a sharp object. The 1st victim escaped to a shop & asked the proprietor to phone the police. Shortly thereafter, appellant entered the shop & rummaged through a shelf of chips. Police arrived & the 1st victim identified the appellant as the man who had robbed him. The stolen phone was found hidden on the shelf of chips. The 1st victim had described the appellant as wearing a blue & red Nike brand jacket. This jacket was presented to the jury as evidence. While inspecting the jacket, a jury member was pricked by a sharp object. A syringe & medical swabs were discovered secreted in the lining of the jacket. The jury brought this to the attention of the judge, who instructed them to disregard the items.
Irregularity in jury proceedings - non-evidentiary evidence becoming available to jury after retirement - unfair prejudice - whether miscarriage of justice.
Appeal dismissed.
479

COOPER, Leslie William - CCA, 18.10.2002
Giles JA, Bell & Buddin JJ
Citation: R v Cooper [2002] NSWCCA 428
Conviction appeal.
Manslaughter; take conveyance without consent of owner.
Total of 7y with NPP of 5y.
A mother left her 2 year old child in her car while she went into a shop. The car was stolen with the child inside. When the car was found some hours later, the child was dead, having died from heat exhaustion. A witness testified that she had seen the car being taken by a man of Asian appearance. An identikit picture was made of her description of the man. She said he had light skin. Neither the identikit picture nor the description of light skin bore any resemblance to the appellant, who was an Aboriginal. The appellant said that he found the car after it had been stolen & abandoned. He said that the vehicle was unlocked, the keys were in the car but the engine was not running. He claimed that he entered the vehicle, intending to steal it, but that when he saw the child in the back seat, he changed his mind & left the vehicle. Besides the appellant's fingerprints & DNA being found on the steering wheel, the gear lever & the outside of the car, there were also unidentified fingerprints & DNA samples taken from the steering wheel & gear lever, supporting the proposition that another party may have stolen the car. What the Crown had established was no more than that the appellant had, at some time on the afternoon in question, been in the car.
Whether verdict unreasonable.
Appeal allowed: convictions quashed, verdicts of acquittal entered.
480

WILLIAMS, Darren George - CCA, 18.10.2002
MIERS, Anthony Neville
Buddin J, Smart AJ
Citation: R v Williams; R v Miers [2002] NSWCCA 427
Sentence appeal.
Williams: conspiracy to steal - 3y with NPP of 2y.
Miers: conspiracy to steal - 2y 5m 12d with NPP of 16m.
Williams & 2 co-offenders were principals in a conspiracy to steal a semi-trailer carrying a load of computer, phone & electronic equipment (value $400,000). The driver of the semi-trailer was one of the principals. Williams recruited Miers & other co-offenders into the conspiracy. The driver of the semi-trailer arranged a roadside rendezvous with several co-offenders driving 2 rented trucks, Williams a passenger in one of the trucks. Miers had arranged for 2 men to assist him. The electronic equipment was transferred into the 2 rented vehicles & the driver of the semi-trailer was bound & gagged to create the appearance of a robbery. Only $20,000 worth of the stolen equipment was subsequently recovered. Miers played a significant role in the disposal of the stolen goods.
Williams: aged 30 at time of offence - significant assistance to authorities - tragic life - disability following severe burns in childhood necessitating lengthy periods of hospitalisation - death of child - hardship of custody on wife & infant child - genuine remorse - prior good character - some priors overseas - no previous imprisonment.
Miers: aged 38 at time of offence - early guilty plea - possible assistance to authorities - serious health problems - prior good character - need for counselling & supervision - priors - not previously imprisoned.
Parity - extent of reduction which should be made - co-offenders sentenced on different factual bases.
Williams: appeal allowed, sentence reduced to 2*y with NPP of 18m.
Miers: appeal allowed, sentence reduced to 2y with NPP of 12m.
481

NIKETIC, Alexander - CCA, 2.10.2002
Wood CJ at CL, Howie J, Smart AJ
Citation: R v Niketic [2002] NSWCCA 425
Sentence appeal.
Import commercial quantity methylenedioxymethylamphetamine (ecstasy).
7*y with NPP of 4*y.
Applicant was arrested at Sydney Kingsford Smith Airport when found to be carrying 2 plastic bags containing 9,865 ecstasy tablets (1.1953 kg of pure ecstasy) strapped to his body. The tablets were estimated to have a street value of $690,550. It was impossible to determine what role applicant played beyond the fact that he imported the drugs
Aged 35 at time of offence - HIV positive - prior driving offence - no previous imprisonment.
Ill-health - whether insufficient weight given - general deterrence - remorse.
Appeal dismissed.
482

OO - CCA, 8.10.2002
Sully & Howie JJ
Citation: R v OO [2002] NSWCCA 416
Sentence appeal.
Sexual intercourse with child under 10 years; AOABH; assault.
Total of 6y with NPP of 3*y.
The 2 young victims were assaulted by the applicant whilst they were under his care. He forced the female victim (aged 9) to have sexual intercourse with him. He severely beat the young male victim (aged 11) with a length of hose. He also hit him in the face with his hand.
Aged 32 at time of offences - suffering from schizophrenia - need for psychiatric treatment - need for extensive period of supervision upon release from custody - early guilty plea - priors include dishonesty, property & violent offences - no previous imprisonment.
Special circumstances.
Appeal dismissed.
483

KRSTEVSKI, Saso - NSW SC, Kirby J, 25.10.2002
Citation: R v Krstevski [2002] NSWSC 977
Remarks on Sentence.
Murder.
This was an unprovoked murder of offender's employer in order to cover up fraud & facilitate further fraud.
Sentenced to 24y with NPP of 18y.
484

DRUMMOND, Martin Lee - CCA, 9.10.2002
CROOK, Suzanna Louise
TARANTO, Graham John
Sperling & Buddin JJ
Citation: R v Drummond, Crook & Taranto [2002] NSWCCA 413
Sentence appeals.
Detain with intent to hold for advantage.
Drummond - 4y 4m with NPP of 3y 3m.
Crook - 4y with NPP of 2y (finding of special circumstances).
Taranto - 3y 8m with NPP of 2y 9m.
Victim was a sex worker, employed on a casual basis at Drummond's brothel. At Drummond's request, she went to his apartment. Drummond accused her of stealing his amphetamines. She was then physically assaulted & slapped around her face by Drummond & Crook. Drummond pointed a pistol at the victim's head & told her she would not leave the premises until she returned the drugs. She made an attempt to escape, however she was apprehended by Taranto who returned her to the apartment where she was handcuffed to the bed by Crook. The victim later managed to escape.
Drummond: major role in offence - on parole at the time - lengthy criminal record - challenge to findings of fact - whether sentence manifestly excessive.
Appeal dismissed.
Crook: significant role in offence - favourable subjective features - challenge to findings of fact - whether sentence manifestly excessive.
Appeal dismissed.
Taranto: lesser role in offence - whether sentence manifestly excessive.
Appeal allowed: resentenced to 3y with NPP of 2y 3m.
485

DIB, Mahmoud - CCA, 3.10.2002
Meagher JA, Sully & Sperling JJ
Citation: R v Dib [2002] NSWCCA 409
Application for leave to appeal under s.5F Crimes Act 1900 against orders of trial judge refusing a discharge or stay.
This matter arose out of a joint trial of the applicant & a co-accused for a robbery alleged to have taken place at an ATM machine. The robbery was recorded on video. The only issue in the applicant's case was whether a person photographed in the video was in fact the applicant.
Possible prejudice - appropriate instructions.
Whether trial judge's discretion miscarried.
Appeal dismissed.
486

THOMSON, James Anthony - CCA, 30.9.2002 - 134 A Crim R 252
DANN, Brian Frederick
Santow JA, Hidden & Adams JJ
Citation: R v Thomson; R v Dann [2002] NSWCCA 400
Crown appeal against severance of indictments.
Heroin was found in the home of a male person who denied all knowledge of the drugs. He told police he knew of the name of the owner of the drugs & he would come forward later with the name. Some months later, Thomson & Dann went to police & confessed to possessing the heroin. The prosecution argued that aspects of those confessions suggested they may not have been true. Thomson & Dann were each charged with supplying the heroin (on the basis the confessions were true). They were charged in the alternative with attempting to pervert the course of justice (on the basis the confessions were false). The trial judge severed the alternative count.
Mutually exclusive counts in indictment - whether court should have ordered counts be severed.
Appeal allowed: Order set aside.
487

HESFORD, Philip Mark - CCA, 9.10.2002
Sperling & Buddin JJ
Citation: R v Hesford [2002] NSWCCA 437
Motion for summary dismissal.
Appellant lodged a Notice of Appeal against conviction & an application for leave to appeal against sentence. He suffers from a mental disability. He lodged documents with the Court purportedly in support of his case & received notice to show cause why his appeal & application should not be summarily dismissed. No intelligible ground had been lodged with the Court.
No order made. Matter to be listed on 1st available opportunity & appellant to attend on that occasion.
488

ZAHAB, Khoder - CCA, 25.10.2002
Spigelman CJ, Howie J, Smart AJ
Citation: R v Zahab [2002] NSWCCA 430
Crown appeal.
5 x armed robbery (offensive weapon); + Form 1 offences (12 x armed robbery).
Total of 6y with NPP of 4y.
The 17 offences covered 3 periods & were committed between 11.3.2001 to 11.8.2001. The 5 armed robs were perpetrated upon 7-Eleven stores. In each case, the victim was threatened with a syringe. The Form 1 offences were similar, a syringe being produced on each occasion. The respondent was on bail at the time.
Aged 31 at time of offences - guilty pleas at earliest opportunity - significant utilitarian value - contrition - remorse - Crown case on identification virtually non-existent in most cases - discount of 25% - difficulty accommodating cultural values within strict Muslim family & those in the wider community - trade qualifications - drug problem - started using drugs at age 22 - break-up of marriage - 2 children - suicide attempt - history of psychotic illness - persecutory delusions - auditory & visual hallucinations - requires long-term psychiatric treatment with anti-psychotic medication, as well as drug & alcohol rehabilitation - priors - previous imprisonment.
Whether sentences manifestly inadequate.
Appeal allowed: respondent re-sentenced to total of 7*y with NPP of 5y.
489

CLARKE, Kenneth Lloyd - NSW SC, Sully J, 25.10.2002
Citation: R v Clarke [2002] NSWSC 993
Redetermination of life sentence under s.13ASentencing Act1989.
Murder.
Applicant brutally battered his fiance's to death, using a glass jar. At first applicant told police that he was drinking at a hotel until after mid-night, then walked home. He said that on his arrival home, he found the door open & the deceased on the floor of the bedroom. Applicant had blood on him. However, prior to the police attending, applicant had phoned his fianc*e's mother & told her he had killed the deceased, asking her to call the police. When police spoke to applicant later in the day, he admitted he had hit his fianc*e but claimed he did not mean to kill her.
Aged 24 at time of offence - good behaviour in gaol - beneficial influence on juvenile offenders - instrumental in co-ordinating groups to aid young offenders - need to preserve safety of community.
Application allowed: re-sentenced to 20y with NPP of 15y.
490

BRADLEY, Simon Mark - NSW SC, Bell J, 1.11.2002
Citation: R v Bradley [2002] NSWSC 1018
Remarks on Sentence.
Hinder the discovery of evidence concerning a serious indictable offence (s.315(1)(b) Crimes Act 1900).
The above offence was in the alternative. Offender originally also charged with being an accessory after the fact to murder, however, the trial judge directed the jury to acquit on that charge.
Co-offender shot & killed a young male (see R v Collisson [2002] NSWSC 229). Crown case was that the offender hindered the discovery of evidence concerning the killing by carrying the co-offender's sports bag away from the scene & concealing it in Leemon Reserve, Greenwich. The gun used by the co-offender to fire the shots that killed the deceased was later found wrapped in a sloppy joe inside the sports bag.
Sentence: 2y GBB.
491

MM - CCA, 1.11.2002 - 134 A Crim R 216
Levine, Hidden & Howie JJ
Citation: R v MM [2002] NSWCCA 431
Sentence appeal.
11 x sexual offences (indecent assault, buggery, sexual intercourse, incite to commit act of indecency).
Total of 8y with NPP of 6y.
This appeal arose after a retrial consequent upon a decision of the CCA in R v MM [2000] NSWCCA 78. At his 1st trial, applicant was convicted & sentenced on 14 counts. At the retrial, he was convicted of 11 of the same charged 14 offences & acquitted of 3 of them. The sentencing judge imposed the same concurrent sentences in respect of each of the 11 offences as had been imposed for those after the 1st trial, resulting in the total effective sentence remaining the same.
All offences were alleged to have been committed against appellant's son, aged above 10 & under 16 at the time.
Same overall sentence - question of 'increase'- sentencing convention - principles in operative sentences.
Appeal dismissed.
492

CIOBAN, Gheorge - NSW SC, Studdert J, 18.10.2002
Citation: R v Cioban [2002] NSWSC 972
Remarks on Sentence.
Manslaughter; maliciously discharge a firearm with intent to do GBH.
The offender was involved in a street fight with a group of Fijians, during which he was punched & kicked a number of times. Offender produced a gun & fired a shot but did not hit anybody. He then run away, however, the victim pursued him in an aggressive manner. Offender backed into a doorway & fired a shot which hit the victim in the chest.
No premeditation - believed necessary to defend himself.
Romanian - full time carer for disabled son - offence out of character - good prospects of rehabilitation.
Sentenced to total of 9y with NPP of 6y.
493

CK - NSW SC, Studdert J, 11.10.2002
Citation: R v CK [2002] NSWSC 942
Remarks on Sentence.
Manslaughter.
Offender was present during a series of confrontations between Asian & Australian youths throughout the evening of the killing. He threw a solid metal bar at a car, which penetrated the skull of the 17 year old male driver.
What the accused threw at the car is variously described in the judgment as a 'bar', a 'pole'& a 'rod'What it was in fact was a piece of solid metal, approximately 30-35 long & approximately 6 millimetres in diameter.
Aged 16 at time of offence - born to Korean parents - remorse - contrition - uncharacteristic behaviour - hardship to family - depression as a result of the killing.
Sentenced to 7*y with NPP of 4y (special circumstances found).
494

SJB - NSW SC, Wood CJ at CL, 6.11.2002
McLEAN, Matthew John
Citation: R v SJB and McLean [2002] NSWSC 1042
Remarks on Sentence.
SJB - Murder.
McLean - Murder; take & drive motor vehicle without consent of owner.
Deceased died from multiple knife wounds following an entirely unprovoked & senseless attack upon him. McLean & SJB had each armed themselves with a knife. McLean also armed himself with a large metal nutcracker. Deceased drove offenders towards Seaforth shopping centre where McLean was to be dropped off. When they reached Ellery Parade, SJB leaned over from the back seat & stabbed the deceased in the face. The 2 offenders then repeatedly stabbed him, inflicting a large number of wounds, mainly to the upper body. Whilst this was occurring, the car rolled to a halt, sustaining minor damage when it struck the rear of a parked vehicle. After a brief struggle, the deceased managed to escape from the vehicle & ran to the nature strip outside number 9 Ellery Parade, Seaforth, where he collapsed. The offenders then inflicted more knife wounds & punched & kicked him. They eventually ceased their attack & lifted his body over a brick wall into the front yard of the adjoining premises. After taking his wallet, they purchased petrol in St Ives, then drove on to Nelson Bay & remained there until later that night, then drove on to Newcastle. The next morning, the deceased's car was seen & stopped by Police in Newcastle, the offenders arrested & taken to Newcastle Police Station. The knife used by SJB was found inside the MV's glove box. The knife used by McLean had earlier been found on the nature strip outside 9 Ellery Parade. Each knife was bloodstained. DNA recovered from the knives was of the same profile as deceased's DNA.
SJB: Aged 15 at offence - only child of supportive, stable, deeply religious family - history of disobedient, disruptive behaviour at school - attention deficit hyperactivity disorder - attempts at rehabilitation whilst in custody - remorse.
Sentenced to 15y with NPP of 10y.
McLean: Aged 18 at offence - attention deficit hyperactivity disorder as a child - affected in early life by separation of parents - occasional use of cannabis & alcohol - no drug dependency - supportive family - schooling somewhat unsatisfactory - poor concentration, learning difficulties - commenced apprenticeship as a spray painter - remorse.
Sentenced to 19y with NPP of 13y for murder; concurrent FT of 6m for take & drive conveyance.
495

MAZZITELLI, Michele - CCA, 31.10.2002
Spigelman CJ, O'Keefe & Simpson JJ
Citation: Mazzitelli v R [2002] NSWCCA 436
Conviction and sentence appeal.
Knowingly concerned in the importation of a commercial quantity of cocaine.
19y 8m with NPP of 12y 4m.
Gross quantity of cocaine 28.174 kgs, yielding 17.4927 kgs pure cocaine. Estimated street value $7 million.
Appellant imported an autoclave machine into Australia through his brother-in-law's business, telling his brother-in-law that only a business was able to import such a machine. In fact, he told his brother-in-law that it was a cleaning machine for cleaning parts, buckets & metal objects generally. Customs officers found cocaine concealed within the machine. When questioned by police, the appellant named his brother-in-law as the person importing the machine, claiming that he, the appellant, was merely a pawn in the operation. An important part of the Crown case consisted of records of intercepted telephone conversations wherein it was clearly demonstrated that it was the appellant who was giving instructions to his brother-in-law about the delivery of & other matters relating to the autoclave machine.
Circumstantial and other evidence - direction - unreliability warning - whether unfairness in summing up - character evidence - role of accused in enterprise - not mere courier - not principal - whether sentence excessive.
Appeal dismissed.
496

LADOCKI, Peter Ferenc - CCA, 4.11.2002
Sully, Dunford & Bell JJ
Citation: R v Ladocki [2002] NSWCCA 442
s.5F application seeking leave to appeal against DC judge's ruling in favour of the Crown to admit challenged evidence at trial.
Ruling on evidence made in advance of or in the course of a trial - requirement of leave in s.5F Criminal Appeal Act 1912 - statements of principle.
Leave to appeal refused.
497

CLAMPITT-WOTTON, Anthony James - CCA, 30.10.2002
Levine, Hidden & Howie JJ
Citation: R v Clampitt-Wotton [2002] NSWCCA 383
Crown appeal.
2 x dangerous drive occasioning death; 2 x dangerous drive occasioning GBH.
Total of 2y with NPP of 12m; disqualification of licence for 3y.
Respondent, who was driving a heavy truck, failed to stop at an intersection & collided with the rear of a car which was being driven by a mother whose 4 children were passengers in the car. A number of cars were stopped at the intersection, waiting to turn right & she had stopped behind those cars. Two of the woman's daughters were killed in the collision. Her other daughter & her son suffered serious injuries.
Aged 34 at time of offences - minor traffic record - stable relationship - 5 children living with respondent - truck driver for 6 years prior to accident - has not driven since accident - attempted to start takeaway food business but this failed due to vandalism & harassment because of publicity as a result of collision - bankruptcy - facing loss of home - profound remorse - unresolved trauma due to death of victims & subsequent harassment - no priors.
Whether sentence manifestly inadequate - Whyte [2002] NSWCCA 343 - Jurisic 45 NSWLR 209.
Appeal allowed: resentenced to total of 4y with NPP of 2y; disqualification of licence for 3y.
498

VAN TRAN, Christopher Tien - CCA, 29.10.2002 - 134 A Crim R 577
VAN TRAN, Hung
Dunford & Kirby JJ
Citation: R v Van Tran [2002] NSWCCA 440
Sentence appeal.
Maliciously inflict GBH; + further offence of maliciously inflict GBH taken into account on a Form 1.
Each sentenced to 4y with NPP of 3y.
Both applicants were shot as they drove along Cumberland Highway. Believing they knew who had shot them, they arranged for some men to shoot at that person's house. The hired men, armed with a number of firearms, drove to that person's home. Hung Van Tran was with them. The person who the Van Tran's thought had shot them was sitting on the verandah of the house with another man. Both of these men were shot. The assailants then sped away in 2 cars. Both victims suffered injuries which required surgery. Police had intercepted a number of phone calls prior to the commission of the crime, from which there was no doubt that the applicants had procured the others to do the shooting on their behalf.
Guilty pleas - utilitarian value - discount - gravity of additional offence.
Appeal dismissed.
499

CARR, Peter David - CCA, 1.11.2002 - 134 A Crim R 171
Levine, Hidden & Howie JJ
Citation: R v Carr [2002] NSWCCA 434
Crown appeal.
Fraud by director of body corporate - 4y with NPP of 2y;
fraudulent misappropriation - FT 2y (concurrent).
Respondent was a solicitor who held the position of director of 2 related companies. He was also retained by one of the companies to provide legal advice. He had custody & control of the financial records of that company, including the company's chequebook & was authorised to draw cheques for matters within the normal operation of the company's day-to-day business. Respondent's fraudulent activity came to light when the company's accountant came to complete the company's financial statements & income tax returns. Respondent had paid himself a total of $321,666.00 from the company's funds. He subsequently repaid only $85,800.00. The second offence arose as a result of respondent's association with yet another company involved in property development, wherein respondent misappropriated monies held in trust. An amount of $358,952.68 was thus misappropriated, of which $30,966.56 was returned to the company.
Aged 49 - married with 3 children - supportive wife - respondent fantasises, retreating into a world of self-deception - need for long-term therapy - prognosis moderately good.
Whether sentence manifestly inadequate - whether cumulation of sentences required - application of Pearce v The Queen - seriousness of fraud by solicitors.
Appeal dismissed.
500

PRESTWIDGE, Ronda Shane - CCA, 8.11.2002
Dunford & Kirby JJ
Citation: R v Prestwidge [2002] NSWCCA 439
Sentence appeal.
Aggravated BE&S (malicious infliction of GBH); + Form 1 offences (1 x larceny, 4 x attempt B&E with intent to steal).
5y 3m with NPP of 3*y.
This was a home invasion type offence. Applicant & her co-offender broke into the home of an 86 year old male who lived alone. The co-offender, armed with a screwdriver, demanded money, then forced the victim's head to one side & held the screwdriver to his throat. The victim directed offenders to an ashtray where he kept his small change. When the victim cried out for help, the co-offender placed a pillow over his face & cut his forehead with the screwdriver. The offenders then ransacked the house & removed the victim's watch. They also stole some other property. Co-offender received 6y 3m with NPP of 4*y.
Aged 32 - guilty plea at earliest opportunity - dependent personality - more a follower than a leader - co-offender described as a 'bully boy'- sentence being served in protection - significant attempts at rehabilitation - addressed drug problem since being in custody - resolve to remain drug free upon release - degree of contrition.
Insufficient weight given to guilty plea - utilitarian value - parity - justifiable sense of grievance.
Appeal allowed: resentenced to 4y 2m with NPP of 2y 9m.
501

MFA - HC, 14.11.2002 - 213 CLR 606;77 ALJR 139
Citation: MFA v The Queen [2002] HCA 53
On appeal from the NSW CCA.
Indictment containing multiple counts of sexual offences with respect to one complainant. Verdicts of guilty on 2 counts & acquittals on remaining counts.
Whether verdicts unreasonable - significance of acquittals when considering unreasonableness of guilty verdicts - test for determination of unreasonableness of jury's verdict - significance of disparities in evidence & failure of prosecution to call witness - whether error shown in CCA's reasons - whether proceedings should be returned to that Court - whether HC should perform appellate reconsideration.
Appeal dismissed.
502

BESODI, Mohammed Hassan - CCA, 20.11.2002
Simpson J, Carruthers AJ, Mathews AJ
Citation: R v Besodi [2002] NSWCCA 452
Conviction and sentence appeal.
Attempt possess prohibited import (heroin).
8y with NPP of 5y.
Customs officers intercepted a package from Thailand containing heroin with a pure weight of 14.6 grams. The heroin was substituted with an inert substance & a controlled delivery was made to the post office box to which the package was originally addressed. Appellant collected the package from the post office & took it home where he opened it before being arrested by police.
Aged 52 at time of offence - prominent position within Afghan community - welfare work for refugees - good character - depression - no priors.
Crown's cross-examination caused trial to miscarry - purity by weight of heroin delivered (6.1%) was so low as to create a strong impression in appellant's favour that the package had been sent without his knowledge or involvement with the intention of "setting him up" - whether sentence manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 6y with NPP of 3y 9m.
503

BOLAMATU, John - CCA, 11.11.2002
Wood CJ at CL, Dowd & Bell JJ
Citation: R v Bolamatu [2002] NSWCCA 454
Sentence appeal.
Robbery in company; assault.
Total of 6y with NPP of 4y.
Appellant & his co-offender went to victim's flat for the purposes of recovering a debt. They took items under a claim of right. They also smashed & overturned furniture & threatened the victim, who was nearing full-term pregnancy. Appellant & his co-offender entered a bank. Appellant jumped a counter & demanded money from the tellers, then assisted the co-offender to gain access to the area behind the security screens. They took over $30,000, however, a teller threw dye into the bag the appellant was carrying & he was subsequently detected via his fingerprints left on the counter & his presentation of a dye-marked note.
Aged 29 at time of offence - chronic mental illness since teen years - recurrent drug-induced psychosis - not psychotic at time of offence - need for lengthy supervision - extensive history of violence & dishonesty offences - previous imprisonment.
Special circumstances - pre-sentence custody - mental illness - accumulation.
Appeal allowed: new total sentence of 6y with NPP of 3*y.
504

NICODIN, Mario - 7.11.2002
Simpson J, Carruthers AJ, Mathews AJ
Citation: R v Nicodin [2002] NSWCCA 447
Conviction appeal.
Supply commercial quantity methylamphetamine.
5y 9m with NPP of 3y 9m.
A man, suspected of being involved in the distribution of drugs, was being investigated by Federal Police. They observed appellant in the company of that man in a coffee shop & later in a vehicle. When appellant alighted from the vehicle, police arrested him. He was found to be in possession of 500 grams of methylamphetamine.
Directions - deemed supply - possession - intention to transfer physical control.
Appeal allowed: new trial ordered.
505

SHANKS, Daniel John - CCA, 29.10.2002
Dunford & Kirby JJ
Citation: R v Shanks [2002] NSWCCA 438
Sentence appeal.
Armed robbery in company; aggravated B&E; steal MV; + Form 1 offence (B&E).
Total of 12y with NPP of 8y (partly cumulative, partly concurrent sentences).
Offences were committed whilst applicant was on parole after serving a NPP of 4y for 5 armed robberies. Within a matter of months after being released to parole, he committed the above offences.
Appellant & his co-offender waited outside a bank. When an employee opened the doors to the bank, appellant & co-offender pushed her aside & entered the bank. They removed $57,000 from the cash drawers, threatening staff with a semi-automatic pistol. Two months later, appellant stole a truck from a college complex, damaging 2 windows, a gate & the truck in the process. Appellant & a co-offender broke into a clothing store in a mall & attempted to open a safe. They were unsuccessful so the appellant asked 2 other co-offenders to go back to the store, whereupon they stole clothing valued at $1,000 & cash amounting to $2,445. Offenders fired shots from a gun when chased by security guards. When appearing in court for various charges, appellant jumped from the dock & escaped, however, he was apprehended by police.
Aged 23 at time of 1st offence - chronic drug use - desire to give up drugs, no strong motivation to do so - hepatitis C - priors include driving offences, B&E, armed robs, breach of parole, possess offensive instrument - previous imprisonment.
Guilty plea - on parole at time of offence - prospects of rehabilitation - family support - whether sentence excessive.
Appeal dismissed.
506

ZAKARIA, Khaled - CCA, 13.11.2002
Wood CJ at CL, Dowd & Bell JJ
Citation: R v Zakaria [2002] NSWCCA 450
Sentence appeal.
Supply prohibited drug (cannabis); ongoing supply of prohibited drug (cocaine); + Form 1 offences (5 x supply prohibited drug; 2 x goods in custody).
Total of 3*y with NPP of 2*y.
Appellant was driving when he was stopped by police. A search of his vehicle revealed a large quantity of cannabis in several different sized plastic bags. He admitted selling cannabis. The Form 1 offences were similar but also involved ecstasy & amphetamine discovered when appellant's car was searched following a random breath test 3 days earlier. Four weeks later, having been released on bail, appellant was arrested after selling cocaine to 3 different undercover police officers within a matter of minutes. Each transaction involved 0.13 or 0.14 g of the drug.
Aged 20 at time of offences - history of drug abuse - expelled from high school - learning difficulties - remorse - priors include stealing, goods in custody, obtain by deception, AOABH - no previous imprisonment.
Whether sentence excessive.
Appeal dismissed.
507

LAM, Duncan Sak Cheung - CCA, 7.11.2002
Levine, Hidden & Howie JJ
Citation: R v Lam [2002] NSWCCA 377
Conviction appeal.
Conspiracy to supply large commercial quantity heroin.
16y with NPP of 12y.
Appellant & 3 co-conspirators were involved in a heroin supply conspiracy. One co-offender (appellant's girlfriend) dealt with prospective buyers. Appellant was responsible for directing arrangements for supply involving delivery by a co-conspirator to various vehicles where another co-conspirator would conduct the transaction. The heroin was stored in the boot of a car garaged at a rental property to which appellant & the delivery co-conspirators possessed keys. Police ultimately stopped a vehicle driven by one co-conspirator & found 2 blocks of heroin weighing 1.395 kgs. Around the same time, appellant was arrested & was found to have keys to a rental property where he resided. A search of the rental property revealed $30,000 in cash in a plastic bag & keys to a further property. Police discovered 14 kgs of heroin in the boot of a car garaged at that property.
Evidence of possession of a set of keys - admissibility in circumstances - directions as to possession - search warrants - validity - intercepted telephone calls as basis - expert evidence on coded language.
Appeal dismissed.
508

FELTON, Shaun Peter - CCA, 8.11.2002
Sully & Howie JJ
Citation: R v Felton [2002] NSWCCA 443
Sentence appeal.
2 x drive conveyance taken without consent of owner; possess car-breaking implements; 2 Form 1 documents (drive whilst disqualified, state false name & address, exceed speed limit by over 30kph, take & drive conveyance without consent, stealing).
Total of 4y with NPP of 2y.
The trial judge was misinformed that the offence of drive without consent of owner carried a maximum penalty of 10y imprisonment & proceeded to sentence on that basis, rather than the actual maximum penalty of 5y.
Applicant was stopped by police when speeding (123kph in 90kph zone) in a stolen vehicle. He initially gave a false name, however, when he gave his real name, police became aware that he had been disqualified. Whilst on bail for these offences, applicant was pulled over by police to partake in a random breath test. Inquiries revealed that the vehicle had been reported stolen & that appellant had started it with a bent fork. Some 3 weeks later, police again stopped appellant who was speeding. Again, he gave a false name & address. The vehicle was stolen & police found a bent fork, which had been used to start the ignition.
Aged 20 at time of 1st offence - lengthy history for offences of illegal use of MVs - appalling record for driving offences - never held a licence - on parole & subject to GBB for similar convictions - on bail - difficult childhood marked by abuse - supportive family - youth - recently diagnosed post-traumatic stress disorder - need for treatment & supervision - priors include 7 x drive conveyance without consent, 6 x drive whilst disqualified, negligent driving, dangerous driving, possess car-breaking implements, 2 x property offences, 2 x false representation, assault with intent to resist apprehension - previous imprisonment.
Failure to apply Pearce 194 CLR 610 - effect of taking matters into account on sentence.
Appeal allowed insofar as sentences restructured, giving a total of 4y with a NPP of 2y.
509

ZREIKA, Toufic - CCA, 28.10.2002
Beazley JA, Sperling J, Carruthers AJ
Citation: R v Zreika [2002] NSWCCA 459
Conviction appeal.
2 x wound with intent to murder; 1 x threaten a witness with intent to influence the witness not to attend.
No details of offences stated.
Summing up - error in trial judge's direction that disbelief of defence evidence could strengthen Crown case - inappropriate case for proviso - miscarriage of justice.
Appeal allowed: convictions quashed, new trial ordered.
510

PAGE, Garry John - NSW SC, Kirby J, 15.11.2002
Citation: R v Page [2002] NSWSC 1067
Redetermination of life sentence under s.13ASentencing Act1989.
An interesting matter in which Kirby J examines the impact of a reduced statutory maximum (25y from Life) for a worst case wound with intent to murder, when re-determining a Life sentence. The matter is also a remarkable example of extreme factors of objective seriousness in counter-balance with appallingly grave facts.
Change in penalty - whether Court obliged to give benefit of change.
Application allowed: resentenced to 20y with a NPP of 15y.
511

DARBY, Glen Paul (DPP v) - NSW SC, O'Keefe J, 28.11.2002
Citation: DPP v Darby [2002] NSWSC 1157
Appeal by summons under s.104 Justices Act 1902 in which the DPP sought an order pursuant to s.109 of the Act quashing the decisions & orders of a magistrate whereby 2 charges of possessing a prohibited drug that had been laid against the defendant were dismissed. Errors were said to arise as a result of the magistrate rejecting an essential component in the prosecution case, namely, what was found by a police officer when he physically searched the defendant, and in determining that the acts of the sniffer dog themselves constituted a search which, in the absence of an appropriate warrant, was illegal.
Police powers - sniffer dog - suspicion - reasonably suspect - basis for suspicion - what constitutes a search - assault - drugs - identifying presence of drugs by trained drug detection dog - evidence - interlocutory order.
Magstrate's decisions & orders set aside; matters remitted to the LC for determination.
512

SEWELL, Bradford Demainbray - CCA, 11.11.2002
Wood CJ at CL, Dowd & Bell JJ
Citation: R v Sewell [2002] NSWCCA 453
Sentence appeal.
Deemed supply methylamphetamine; deemed supply ecstasy; supply cannabis leaf.
Total of 4y with NPP of 2y.
Appellant was stopped by police & was found to be in possession of 3.68 grams methylamphetamine, 42.5 ecstasy tablets (valued at between $1260 & $1680), as well as 42.6 grams of cannabis leaf. He subsequently pleaded guilty to the cannabis offence. Police searched appellant's premises & found plastic bags & a set of scales.
Aged 27 at time of offences - remorse - co-operation with police - dealer - limited quantity of drug - priors unknown.
Whether sentence manifestly excessive.
Appeal dismissed.
513

DELUCA, Craig Phillip - CCA, 11.11.2002
Wood CJ at CL, Dowd & Bell JJ
Citation: R v Deluca [2002] NSWCCA 446
Sentence appeal.
Armed robbery; aggravated B&E with intent to commit indictable offence; + Form 1 offence (enter vehicle without consent of owner).
Total of 7*y with NPP of 5*y.
Armed with a knife, applicant & 3 co-offenders broke into a home. When the occupants arrived home, 2 of the co-offenders were still inside. Applicant assisted his co-offenders by beating an elderly man (aged 71) over the head with a broomstick so that the co-offenders could escape. Following their escape, the offenders approached a woman & her 6 year old daughter. Applicant threatened them with the knife, then he & one of his co-offenders stole money & a mobile phone. The offenders then forced their way into a vehicle that had stopped at traffic lights.
Aged 25 at time of offences - early guilty plea - supportive family - crime motivated by serious heroin addiction - reasonable prospects of rehabilitation - priors for malicious damage - no previous imprisonment.
Totality - discount - guideline judgments - Thomson & Houlton followed - Pearce followed - special circumstances.
Appeal allowed: resentenced to total of 6y 1m with NPP of 4*y.
514

WILLIAMS, Graham - CCA, 15.11.2002
Wood CJ at CL, Dowd & Bell JJ
Citation: R v Williams [2002] NSWCCA 458
Sentence appeal.
14 x sexual offences (aggravated sexual intercourse without consent, sexual intercourse without consent, indecent assault, aggravated indecent assault).
Total of 5y 2m with NPP of 3y.
Offences involved multiple victims. Applicant was a masseur who perpetrated the offences upon a number of his clients during the course of massage therapy. One of the victims was aged 15.
Aged 66 at time of first offence - early guilty plea - prior good character - severe personal hardship as a result of conviction - loss of wife, home & business - serious abuse of trust - effect on youthful victim.
Whether sentence manifestly excessive.
Appeal dismissed.
515

ROSE, Jeffrey William Spencer - NSW SC, Kirby J, 22.2.2002
Citation: R v Rose [2002] NSWSC 26
Remarks on Sentence.
Murder.
Following their separation, offender & his deceased wife were living in separate residences. The deceased had arranged to meet some friends at a hotel then catch a bus from Armidale to Brisbane to visit a man with whom she had been having an affair. The deceased did not meet her friends nor did she catch the bus. Approximately a month later, her body was found. The only sign of injury was a haematoma on her neck.
Circumstantial evidence - trial took place 18 years after offence - destruction or loss of important evidence.
Sentenced to 14y with NPP of 10y.
516

ROSE, Jeffrey William Spencer - CCA, 19.11.2002 - 55 NSWLR 701
Wood CJ at CL, Howie J, Smart AJ
Citation: R v Rose [2002] NSWCCA 455
Conviction appeal.
Murder.
See R v Rose [2002] NSWSC 26 for details.
Identification evidence - warning - hearsay evidence - expert witness - whether sufficiently qualified - tendency evidence - failure to call witness - Jones v Dunkel direction.
Appeal allowed: verdict of acquittal entered.
517

TAUPAU, Filivae - CCA, 21.11.2002
Meagher JA, Hidden & Greg James JJ
Citation: R v Taupau [2002] NSWCCA 473
Conviction and sentence appeal.
Malicious wounding with intent to do GBH.
4y with NPP of 2*y.
An argument erupted between appellant & victim at a party. Appellant lunged at victim & stabbed him 4 times. Three of the wounds were superficial & one exposed victim's bowel.
Aged 46 at time of offence - priors include state false name, malicious wounding, maliciously destroy property, 12 x driving offences - previous imprisonment.
Whether verdict unreasonable and not supported by evidence - whether sentence excessive.
Appeal dismissed.
518

SCHULTZ, Paul Patrick - CCA, 15.11.2002
Wood CJ at CL, Dowd & Bell JJ
Citation: R v Schultz [2002] NSWCCA 462
Sentence appeal.
Detain with intent to hold for advantage; + Form 1 offence (aggravated robbery).
5y with NPP of 2*y.
Applicant & co-offenders were part of an elaborate plan to fraudulently obtain bank loans by using false identities. Applicant's wife approached the victim & invited him to take part in the scheme, however, he refused. The victim was lured to the applicant's residence where, with the assistance of the applicant, the principal in the scheme pointed a pistol at his head & handcuffed him. The victim was told that he owed the principal $16,000. The principal then drove the victim to another location, the applicant & his wife following in the victim's car. The victim was handcuffed to a chair. The applicant took the victim's wallet & demanded his PIN number at the direction of the principal. Withdrawals were made from the victim's bank account totalling $1,300.
Aged 37 at time of offence - priors include possess Indian hemp, supply Indian hemp, driving offences, stealing, malicious damage - no convictions since 1990 - no previous imprisonment.
Whether sentence excessive.
Appeal allowed: resentenced to 4y with NPP of 2y 3m.
519

ADAMS, Debbie Marie - CCA, 15.11.2002
Ipp JA, Bell J, Smart AJ
Citation: R v Adams [2002] NSWCCA 448
Crown appeal.
Malicious wounding with intent to do GBH - 12m limiting term; manslaughter - 5y limiting term (consecutive).
Total limiting term 6y.
Respondent, armed with a breadknife, travelled to her mother's house, forced her way into the house & swung the knife towards her mother's de facto, who fled. She then threatened her mother with the knife & chased her outside. She stabbed her mother in the side of her neck, causing a superficial laceration of her right scapula. Whilst on remand at a juvenile detention centre, respondent stabbed a teacher's assistant in the back with a knife during a cooking class. The teacher's assistant died as a result.
Aged 16 at time of offences - diminished responsibility - special hearing - Mental Health (Criminal Procedure) Act 1990 - unfit for trial - pathological fascination for knives - severe personality disorder - harsh conditions in segregated custody - lack of remorse - protection of community - no priors.
Appeal allowed: limiting term for malicious wounding increased to 3y; limiting term for manslaughter increased to 10y; resulting in a total limiting term of 13y.
520

TANUDJAJA, Melinawati - CCA, 19.11.2002
Meagher JA, Wood CJ at CL, Greg James J
Citation: R v Tanudjaja [2002] NSWCCA 467
Sentence appeal.
Import heroin.
6y with NPP of 3y.
The heroin was found on the applicant at Sydney Airport when she arrived from Indonesia. The amount of heroin was 489 grams (344 grams pure heroin). The estimated value of the drug was $244,000. The motivation for committing the offence was because of family plight & circumstances.
Guilty plea - demonstrated remorse - model prisoner - suffers from severe depression requiring psychiatric treatment.
Whether sentence excessive.
Appeal dismissed.
521

WEALAND, David Ralph - CCA, 4.12.2002
Spigelman CJ, Sully & Kirby JJ
Citation: R v Wealand [2002] NSWCCA 471
Crown appeal against dismissal of forfeiture application.
2 x cultivate cannabis plants (50 plants & 132 plants); 2 x supply cannabis leaf; + Form 1 offences (2 x cultivate cannabis; 4 x supply cannabis leaf).
Total of 3y with NPP of 18m.
Police executed a search warrant upon respondent's home unit. Present throughout the search, respondent co-operated fully with police, taking them from room to room & making full admissions concerning the cultivation of a significant number of cannabis plants within the premises. Some plants were seedlings, some mature & some known as 'mother plants'The plants had been grown hydroponically.
The Crown made an application for the forfeiture of the unit (which was owned by the respondent & his wife), as well as forfeiture of the hydroponic & other equipment within the unit. Respondent had no objection to the forfeiture of the equipment, however, he opposed the forfeiture of the home unit. Having heard the application, the sentencing judge refused to order forfeiture.
Aged 47 - no prior conviction - hardship to family - disabled step-son.
Meaning of 'hardship' - Confiscation of Proceeds of Crime Act 1989 - whether judge took account of sentence imposed.
Appeal dismissed.
522

MONTESINOS, Milagnitos - CCA, 26.11.2002
Mason P, Sperling & Bell JJ
Citation: R v Montesinos [2002] NSWCCA 470
Crown appeal.
15 x use false instrument.
Suspended concurrent terms of imprisonment ranging between one month & 24 months.
Respondent obtained employment with a small family company engaged in the business of selling carpets & rugs. Over a 5 month period & on 15 occasions she deposited cheques drawn on the account of the company to accounts operated by her with the St George Bank or the National Australia Bank. The cheques were drawn in sums ranging between $839.40 to $18,500.00. In some instances cheques had been signed in blank by the directors of the company, in other instances the signature of a director appeared to have been forged. Respondent manipulated computer entries associated with raising cheques & edited records relating to the company's suppliers in an effort to conceal her access to the funds of the company. The total amount fraudulently deposited into the respondent's account was $119,643.13. Respondent defended the charges by asserting that she had a genuine belief as to her entitlement to the proceeds of each of the cheques. She contended that one of the directors of the business gave her permission to deposit the cheques into her account so that she might buy "pretty things". It was her claim that she & he were engaged in an intimate relationship. The trial judge considered this claim to have been a preposterous one
Aged 35 - born in Peru - history of depression - prior good character - no prior convictions.
Whether sentences excessively inadequate.
Appeal dismissed.
523

BAIRD, Paul Raymond - CCA, 30.10.2002
Beazley JA, Sperling J, Carruthers AJ
Citation: R v Baird [2002] NSWCCA 460
Conviction appeal.
1 x aggravated sexual assault (threaten GBH with knife); 1 x aggravated sexual assault (threaten GBH); 1 x steal.
Total of 9*y with NPP of 7*y.
Appellant had sexual intercourse with the victim without her consent threatening her with a knife. He later sexually assaulted another victim then stole money & other items from her. As well as the above offences, appellant was indicted upon another count of steal, however, the jury found him not guilty on that count.
Inconsistent verdicts - unfairness in representation of evidence - fabricated evidence.
Appeal dismissed.
524

CARROLL - HC, 5.12.2002 - 213 CLR 635;77 ALJR 157
Citation: The Queen v Carroll [2002] HCA 55
Appeal from Qld CCA.
Respondent was originally charged with the murder of a young child. He denied killing on oath at trial. He was convicted but a successful appeal resulted in a verdict of acquittal. Subsequent DNA evidence showed that the respondent did kill the child. Respondent was charged with perjury & went to trial. The trial Judge refused an application for a stay of proceedings & respondent was subsequently convicted. The Qld CCA quashed the conviction on the basis that proceedings should have been stayed as abuse of process.
Double jeopardy - res judicata - issue estoppel - autrefois acquit - preclusion - power of court to stay indictments for abuse of process - whether perjury indictment should have been stayed.
Appeal dismissed.
525

KOLLAS, Robbie Ashley - CCA, 19.11.2002
MITCHELL, Nathan James
Meagher JA, Wood CJ at CL, Greg James J
Citation: R v Kollas and Mitchell [2002] NSWCCA 491
Crown appeal against sentence in relation to Kollas; application for leave to appeal against severity of sentence by Mitchell.
Kollas: Enter dwelling house with intent to commit a serious indictable offence (affray) in circumstances of aggravation (armed with an offensive instrument). Guilty plea.
4y with NPP of 2y 4m (partially concurrent & partially cumulative upon a pre-existing sentence for earlier offences). In practical terms, the sentencing order meant respondent was required to serve only 6 months in custody for the earlier offences.
Mitchell: Robbery in company. Guilty plea.
5y with NPP of 3y 4m.
Kollas & Mitchell went to a flat in Hornsby which was occupied by 4 adults & 6 children. The offenders were accompanied by at least 2 other men, with whom they had been drinking that afternoon. The reason for going to the premises in Hornsby was to obtain drugs. Offenders attacked the occupants of the premises. One occupant managed to escape to a neighbour's house where he phoned the police. Before offenders left the premises, Mitchell demanded they be given drugs. A quantity of cannabis (38.44 grams) was handed over. A video recorder & a mobile phone were also taken. It was Mitchell who actually took possession of the drugs & the video recorder.
Kollas: Whether sentences manifestly inadequate.
Crown appeal allowed - resentenced to 5*y with NPP of 3y 3m (partially concurrent/cumulative).
Mitchell: Whether sentence excessive - parity - sense of grievance.
Sentence appeal dismissed.
526

MICALLEF, Alan George - CCA, 5.12.2002
Sully, Dunford & Bell JJ
Citation: R v Micallef [2002] NSWCCA 480
Conviction appeal.
2 x possess pistol without authorisation.
14y with NPP of 10*y.
Crown case was that appellant was engaged in a joint criminal enterprise with another to commit an armed robbery on a pharmacy. During the course of that robbery, the male victim was wounded. The Crown relied on circumstantial evidence to prove its case.
Proof - circumstantial evidence - totality of circumstances - whether verdicts unreasonable.
Appeal dismissed.
527

SUBRAMANIAN, Kala Devi - CCA, 25.11.2002
Beazley JA, Sully & Simpson JJ
Citation: R v Subramanian [2002] NSWCCA 372
Conviction appeal.
1 x intent to pervert the course of justice (make false statement).
3y GBB.
Appellant falsely swore a statutory declaration that she was the driver of a vehicle owned by her solicitor employer that was photographed by a red-light camera proceeding through a red light. Appellant had agreed with the solicitor to make the false declaration that she was the driver. Appellant was acquitted of a 2nd charge relating to the giving of false evidence in the DC.
Unfit to be tried - whether verdicts inconsistent - stay in proceedings - admission of evidence - special proceedings - whether trial unfair & oppressive - mental health - exercise of discretion.
Appeal dismissed.
528

HUNT, Craig Kendall - CCA, 3.12.2002
Spigelman CJ, Dunford & Buddin JJ
Citation: R v Hunt [2002] NSWCCA 482
Crown appeal.
2 x impose upon Commonwealth by untrue representation to obtain a benefit (Newstart Allowance).
Total of 2y with NPP of 18m PD + a reparation order.
Respondent received allowances in 2 names (not his own). At all times, he was in receipt of a Disability Support Pension in his own name. With respect to the 1st offence, he received $23,669.60 to which he was not entitled & $7,864.46 with respect to the 2nd offence.
Leniency - general deterrence - whether sentence manifestly inadequate by reason of failure to impose full-time custodial sentence.
Appeal dismissed.
529

SAMPSON, Brett Herbert - CCA, 5.12.2002
Meagher JA, Wood CJ at CL, Greg James J
Citation: R v Sampson [2002] NSWCCA 478
Conviction appeal; and Crown appeal.
1 x maliciously inflict GBH with intent to do GBH.
3y with NPP of 18m.
No facts given - full reasons to be published by Court in due course.
Argument was raised on appeal whether any alternative verdict might have been available.
Crown appeal: Whether sentence inadequate - Appeal dismissed.
Conviction appeal: Whether verdict unreasonable or unable to be supported by evidence - Appeal allowed: verdict & judgment of acquittal entered.
530

ISMUNANDAR, Sidiki - CCA, 5.12.2002
SIREGAR, Saud
Heydon JA, Sully & Levine JJ
Citation: R v Ismunandar and Siregar [2002] NSWCCA 477
Sentence appeals.
Knowingly concerned in the importation of commercial quantity heroin.
Life imprisonment with NPP of 20y.
The offence involved a large importation of heroin which was brought into Australia near Port Macquarie on board a speedboat which came from a ship holding a position of about 12 nautical miles off the Australian coast. This was the largest importation of heroin into Australia at the time. Three men aboard the speedboat were immediately arrested by Australian Federal Police. The amount of heroin imported was 389 kilograms, with 252 kilograms being pure heroin. The estimated street value was $620 million.
Two co-offenders appealed against their convictions & then against their life sentences. These appeals were dismissed. The captain of the ship (Mandagi) appealed against his life sentence (see R v Mandagi [2002] NSWCCA 57). He was successful in his appeal & his life sentence with a NPP of 25y was reduced to 27y with a NPP of 19y.
Parity.
Appeals dismissed.
531

GLEESON, Leigh John - CCA, 27.11.2002
MOORE, Wayne Gordon
Simpson J, Carruthers AJ, Mathews AJ
Citation: R v Gleeson and Moore [2002] NSWCCA 466
Conviction appeals.
Robbery in company.
Moore: 6y with NPP of 4y.
Gleeson: 6y with NPP of 3y.
Above offence arose out of the robbery of an estate agency. Essentially a circumstantial case based on identification evidence. Crown relied upon combined effect of evidence of a number of different witnesses. Several matters were undisputed. No evidence was called on behalf of the appellants at the trial.
Reasonableness of jury's verdict - whether judge's failure to given directions on absence of 2 potential witnesses caused trial to miscarry.
Appeals dismissed.
532

FUNG, Vincent Yiu Chen - CCA, 5.12.2002
Beazley JA, Sully & Hulme JJ
Citation: R v Fung [2002] NSWCCA 479
Conviction appeal.
Supply large commercial quantity prohibited drug (heroin).
5y with NPP of 3y 9m.
Appellant charged with above offence following police surveillance. Gross amount of heroin weighed 3.519 kgs with an average purity of about 60%. Estimated street value of the total quantity of heroin ranged from $1 million to about $8 million, the variation explained as depending upon how the heroin was cut for distribution & whether its ultimate distribution was in ounce lots or in other weights. At trial, the Crown led evidence of the separate supply & possession of heroin by 2 persons. It was contended by the appellant that this evidence was wrongly admitted against him.
Evidence - error in admitting relationship evidence - error in not admitting certain evidence of a phone call - conviction unreasonable having regard to the evidence.
Conviction appeal allowed: new trial ordered.
533

HOLLAND, Peter James - CCA, 27.11.2002
Simpson J, Carruthers AJ, Mathews AJ
Citation: R v Holland [2002] NSWCCA 469
Conviction appeal.
1. Aggravated sexual intercourse without consent 4y with NPP of 18m;
2. Attempt sexual intercourse without consent - 2y with NPP of 1y (concurrent).
Appellant faced trial on 5 counts, including assault with acts of indecency. He was found guilty of above 2 counts & not guilty on all other counts. Appellant was a member of the NSW Police Service engaged as a tutor at the Goulburn Police Academy. Complainant, aged 21 at the time, was a student at the Academy.
Inconsistency of verdicts - directions - effect of doubt concerning credibility or reliability - jury question concerning withdrawal of consent - evidence of tape recorded telephone conversations between complainant and appellant.
Appeal dismissed.
534

HERNANDO, Janian - CCA, 10.12.2002 - 136 A Crim R 451
Heydon JA, Levine J, Carruthers AJ
Citation: R v Hernando [2002] NSWCCA 489
Crown appeal.
2 x robbery in company.
Total of 2y with NPP of 6m.
Offences occurred within 5 days of one another. They were roughly comparable in circumstances, except that the 2nd offence involved respondent using a knife. On each occasion, respondent was in company with a co-offender. In each case, the victim was a young man of similar age to respondent & co-offender.
Aged 19 at time of offences & time of sentencing - guilty pleas - drug abuse - minimal planning - strong family support - good prospects for long-term rehabilitation - 1st time in adult court - priors dealt with in Children's Court (rob in company) - received CSO & placed on recognizance.
Whether sentences manifestly inadequate.
Delay in lodging appeal - delay in hearing appeal - relevance - discretion of CCA not to intervene notwithstanding appealable error.
Appeal dismissed.
535

PUTA, Arben - CCA, 10.12.2002
NITROVIC, Zeljko
NANAI, Satuala
Heydon JA, Blanche AJ, Smart AJ
Citation: R v Puta; R v Nitrovic; R v Nanai [2002] NSWCCA 495
Conviction appeals; and applications by Nitrovic & Nanai for leave to appeal against their sentences.
Manslaughter.
Puta: Total of 11y with NPP of 7y.
Nitrovic: Total of 10y with NPP of 6y.
Nanai: Total of 8*y with NPP of 5y.
Offences involved an assault upon 2 men by 9 offenders. Both victims were ambushed & shot. No clear motive for the shootings & unclear who fired the shots. Each appellant was charged with murder, however, the jury returned verdicts of not guilty of murder but guilty of manslaughter.
Whether verdicts unreasonable & cannot be supported - miscarriage of justice - whether error in leaving manslaughter to jury as available alternative verdict - whether error in not directing verdicts of not guilty.
Puta: Conviction appeal dismissed.
Nitrovic: Conviction appeal dismissed; leave to appeal against sentence refused.
Nanai: Conviction appeal dismissed; leave to appeal against sentence refused.
536

McIVOR, Nathan - CCA, 10.12.2002
Heydon JA, Levine J, Carruthers AJ
Citation: R v McIvor [2002] NSWCCA 490
Crown appeal.
2 x robbery in company.
Total of 2y with NPP of 7m 7d.
Offences were committed in company with co-accused, Janian Hernando: see R v Hernando [2002] NSWCCA 489 for details of case.
Whether sentences manifestly inadequate.
Delay in lodging appeal - delay in hearing appeal - relevance - discretion of CCA not to intervene.
Appeal dismissed.
537

MEYER, Adam Eli - CCA, 2.12.2002
Wood CJ at CL, Dowd & Bell JJ
Citation: R v Meyer [2002] NSWCCA 451
Sentence appeal.
3 x make false instrument with intent; 3 x use false statement with intent.
Total of 3y PD.
Appellant, who was an independent finance broker acting on behalf of a company, negotiated 3 loans for the finance of equipment supposedly being purchased by the company. He received 3 cheques, totalling $906,040. He forged a false signature upon each cheque & endorsed each over to the company. He then personally deposited the fraudulently endorsed cheques into the company's account with Westpac bank. Although he received no part of that money, he was paid commission ($36,237) by the finance companies.
Aged 25 at time of 1st offence - guilty plea at earliest opportunity - full co-operation with authorities - supportive family - remorse - limited role in scheme - previous good character - no priors.
Whether sentence excessive.
Appeal allowed: resentenced to total of 18m PD with NPP of 13m PD.
538

COATES, Timothy James - CCA, 6.12.2002
Sully, Dunford & Bell JJ
Citation: R v Coates [2002] NSWCCA 441
Conviction appeal.
Maliciously inflict GBH with intent to do GBH.
4y with NPP of 2y 3m.
Appellant approached the victim outside his place of employment. He struck him about the head several times with a large piece of wood, causing injuries, including a fractured skull.
The trial judge gave further directions on self-defence which were confusing & misstated the law. He used an incorrect test & his directions suggested the Crown would negative self-defence if the jury concluded that the appellant's response was out of proportion to the threat or perceived threat.
Self-defence - whether misdirection - test to be applied.
Appeal dismissed.
539

MERRITT, Craig Andrew - NSW SC, Greg James J, 4.12.2002
Citation: R v Merritt [2002] NSWSC 1159
Remarks on Sentence.
3 x murder.
Offender killed his 3 young children.
Worst class of case - heinousness - extreme level of culpability - life sentence - two stage process - absence of effective subjective matters.
Sentenced to life imprisonment on each count.
540

EBSWORTH, Allan Ray - CCA, 15.11.2002
Wood CJ at CL, Dowd & Bell JJ
Citation: R v Ebsworth [2002] NSWCCA 465
Sentence appeal.
Armed robbery; + Form 1 offence (being carried in conveyance without consent).
5y with NPP of 3y 9m.
Applicant, armed with a baseball bat, entered a liquor store with 3 co-offenders & demanded that the 2 staff members open the till. They stole $500 in cash, 3 bottles of bourbon & 10 packets of cigarettes. The offenders then fled the scene in a car they had stolen.
Eligibility for Drug Court Programme - error in calculation of expiry date of NPP - whether sentence excessive.
Appeal dismissed, save to correct error made by sentencing judge in calculating date of expiry of NPP.
541

KIRKMAN, Mark Daniel - NSW SC, Bell J, 24.5.2002
Citation: R v Kirkman [2002] NSWSC 1133
Remarks on Sentence.
Murder.
Deceased lived in the same area as offender. Offender attended school with deceased's older brothers. There was a history of poor relations between offender & deceased & members of deceased's family. On the night of the killing, offender & a friend had been drinking most of the afternoon & evening. They talked about deceased & offender suggested they should find him & teach him a lesson. They invited him to join them in a session of marijuana smoking. Deceased agreed & got into the back seat of offender's vehicle. They drove to an area of bushland & there the deceased was stabbed twice in the lower back & beaten about the skull & face with golf irons. He sustained severe injuries to the back of the skull, which were almost immediately fatal. The stab wounds involved significant injury to deceased's internal organs & would have proved fatal.
Sentenced to 18y with NPP of 13*y.
542

LYNCH, Kevin James - NSW SC, Whealy J, 20.11.2002
Citation: R v Lynch [2002] NSWSC 1140
Remarks on Sentence.
Malicious wounding with intent to do GBH; manslaughter.
Offender stabbed deceased who was in bed with offender's wife. Offender's wife was injured during the attack. There was strong evidence of provocation which finally led to offender's loss of self-control.
Sentence: Malicious wounding with intent - 4y 3m with NP of 3y 2m.
Manslaughter - 7y 8m with NPP of 5y 9m (partly concurrent).
Total sentence: 8y 8m with NPP of 6y 9m.
543

TAYLOR, Michael James - NSW SC, Whealy J, 21.11.2002
Citation: R v Taylor [2002] NSWSC 1139
Remarks on Sentence.
Murder; possess prohibited drug.
Offender's evidence was that he delivered a small package of amphetamine powder to a female's address in the early hours of the morning. The female let him in. The offender was knocked unconscious & when he revived, the deceased, armed with a firearm, confronted him. In fact, this firearm belonged to the offender. Offender said he thought he was going to be shot, struggled with deceased & during the struggle the gun went off, fatally wounding deceased. Offender said he left the house & did not see the infliction of the 2nd shot which, according to forensic evidence occurred less than a minute later & brought the deceased's life to an end. The jury rejected the suggestion of accidental death & were satisfied that the Crown had eliminated both self-defence & the partial defence of provocation.
Sentence: murder - 18y with NPP of 14y; possess prohibited drug - $500 fine.
544

NELSON, Stephen Brian - CCA, 13.11.2002
Wood CJ at CL, Dowd & Bell JJ
Citation: R v Nelson [2002] NSWCCA 463
Sentence appeal.
Armed robbery; + Form 1 offences (BE&S, steal MV, possess cannabis leaf).
6y with NPP of 4y.
All offences were committed on the same day. Applicant entered a guilty plea at first available opportunity. In the early hours of the morning, applicant broke into residential premises occupied by his estranged wife & her friend. He stole $50 in cash & a credit card & took the keys to a Ford Telstar motor vehicle. He drove the vehicle to a hotel, got out of the car, leaving 3 bags of cannabis leaf in it (gross weight 74 grams) & knocked on a window of the hotel. The door was opened by the male owner's father, who found himself confronted by applicant pointing a double-barrelled shotgun at him. The man pushed the gun away & called for help. Applicant told him to be quiet & demanded he give him the money in the hotel, otherwise he would shoot him. The man took hold of the applicant's leg & wrestled him to the ground. The man's son arrived & together they managed to subdue the applicant who was subsequently taken into police custody. The firearm contained 2 live rounds. A box of ammunition was found in the car. The applicant was significantly affected by alcohol at the time & was given some time to sober up & was provided with a meal before he was interviewed. He claimed that he could not recall the events of the morning. He said that he had been on anti-depressants & that, despite medical advice, had been drinking beer & tequila the previous night.
Aged 43 - guilty plea - lack of prior record of any significance - mental state - favourable prospects of rehabilitation - whether sentence manifestly excessive.
Appeal allowed: sentenced to 5y with NPP of 3y 4m.
545

BARRE, Ali Ibrahim - CCA, 11.11.2002
Heydon JA, Hulme & Hidden JJ
Citation: R v Barre [2002] NSWCCA 432
Crown appeal.
Accessory before the fact to an armed robbery.
Conditional 2y GBB.
The armed robbery was committed by respondent's co-offender. They discussed committing a robbery on a local corner store which respondent frequented. The original idea was the co-offender's, the motive of which was to obtain funds for himself. Respondent did not enter the store because he would be recognised, however, he assisted with the planning & provided the co-offender with a backpack & a large machete style knife. Respondent accompanied the co-offender & waited for him near the store. After the co-offender had committed the robbery, respondent ran off with him, at times carrying the backpack.
Aged just over 18 at time of offence - still at school - guilty plea - actions towards bottom range - indicative of degree of immaturity - born in Somalia, migrated with family to United and Arab Emirates in 1980's, migrated to Australia in 1997 - parents returned to Middle-East in 1999 leaving respondent & 2 brothers in Australia to complete their education - good upbringing - genuine remorse - offence out of character - prospects of rehabilitation excellent - no priors.
Gravity of offence - victim's child nearby during robbery - excessive weight given to subjective factors - R v Henry - whether sentence manifestly inadequate.
Appeal dismissed.
546

GORDON, Robert Brian - CCA, 11.12.2002
Howie & Buddin JJ
Citation: R v Gordon [2002] NSWCCA 476
Sentence appeal.
Count 1 - supply heroin on 3 or more separate occasions during period of 30 consecutive days.
Counts 6&7 - sell prohibited semi-automatic pistols which were not registered.
Count 9 - possess rifle without authorisation.
Count 15 - possess prohibited firearm (revolver) without appropriate authorisation.
Count 18 - supply prohibited drug (cocaine - 8.8 grams, deemed).
Count 19 - supply prohibited drug (methylamphetamine - 14.45 grams, deemed).
Two matters taken into account (sale of semi-automatic pistol; deemed supply of 12.7 grams heroin).
Applicant originally faced 19 counts
Total sentence of 7y with NPP of 5y.
Aged 45 at time of appeal - guilty pleas - discount of 20% - heroin user - chronic back problems, however, managed to conduct a business involving renovation & repair work - prior offences - previously imprisoned.
Findings of fact - sentence being served in maximum security facility - partial accumulation of sentence - medical condition - whether sentences excessive.
Appeal dismissed.
547

MUSSO, Vincenzo - CCA, 5.12.2002
Sully, Dunford & Buddin JJ
Citation: R v Musso [2002] NSWCCA 487
Crown appeal.
Count 1: aggravated sexual assault - 4*y with NPP of 2*y.
Counts 2&3: aggravated sexual assault - FT 2*y (concurrent with sentence on count 1).
Count 4: act of indecency - FT 6m (concurrent with counts 1,2&3).
Count 5: aggravated indecent assault - FT 18m (concurrent with count 1).
Total sentence was 4*y with NPP of 2*y.
Offences were committed upon a 14 year old girl, in a family situation, by her stepfather.
Double jeopardy - principle of totality - medical condition.
Whether sentences manifestly inadequate.
Crown appeal allowed on counts 2&3. Resentenced on those counts to 4*y with NPP of 2*y, commencement dates varied. Sentences made partially cumulative, partially concurrent, giving an overall total of 5*y with NPP of 3*y.
548

JONES, Lenard Clarence - CCA, 9.12.2002
Bell & Buddin JJ
Citation: R v Jones [2002] NSWCCA 494
Sentence appeal.
5 x dishonestly obtain valuable thing by deception; + 46 offences taken into account (10 x dishonestly obtain benefit by deception (motor cycle with counterfeit bank cheque); 2 x stealing (NSW registration plates & motor cycle); 1 x possess unregistered firearm (semi-automatic rifle); 1 x possess unauthorised firearm (silencer); 1 x possess car-breaking implements (bolt cutters); 1 x possess goods reasonably suspected of having been stolen (motor cycle); 30 x dishonestly obtain deposit of cash for a computer that was not supplied).
Total of 2y 8m with NPP of 1y 8m.
The primary charges involved applicant obtaining motor cycles by presenting counterfeit bank cheques. At the sentence hearing, applicant claimed that another person was the driving force behind the criminal enterprise & that his role had been only to collect & deliver the motor cycles, as well as using his computer skills to produce the false documents associated with the scheme. Applicant involved his son in the commission of some of the offences.
Aged 47 - guilty plea - no prior convictions - bipolar mood disorder - offences out of character - hard-working, diligent & honest person - loving & caring husband & father - reasonable prospects of rehabilitation - psychiatric treatment & supervision needed upon release.
Fresh evidence - subjective material - whether error in imposing full-time custody - whether sentence manifestly excessive.
Appeal dismissed.
549

DJM - CCA, 9.12.2002
Bell & Buddin JJ
Citation: R v DJM [2002] NSWCCA 493
Sentence appeal.
2 x sexual intercourse with person aged between 10 & 16, under authority.
Total of 2y with NPP of 1y.
The complainant is the niece of the applicant's wife. At the time of the offences, applicant was engaged to his wife. The age of the complainant at the time of the offences was 2 weeks short of 15. She & a friend went fishing with the applicant. The friend gave evidence of the complainant's & applicant's sexual conduct in the car. Although it seems the sexual conduct was instigated by the applicant, the friend's evidence indicated that the complainant took an active part in furthering the sexual activity. The complainant's friend told her mother about the sexual conduct. The complainant denied anything of a sexual nature had taken place. At a later time, her mother again spoke to her & on that occasion the complainant said it had taken place. She also said that it was against her will.
Aged 31 at time of offences - guilty pleas - favourable subjective circumstances - previous good character - in receipt of psychiatric treatment around the time of the offences.
Whether error in emphasis placed on deterrence - personal - general - unlikely to re-offend.
Appeal dismissed.
550

HUANG, Jun Yu - CCA, 11.12.2002
Howie & Buddin JJ
Citation: R v Huang [2002] NSWCCA 499
Sentence appeal.
1 x receive stolen property.
5y with NPP of 3y.
Commercial premises were broken into & 58 laptop computers stolen by persons unknown. Applicant came to the attention of police & an undercover police officer contacted him. Initially, applicant could not talk because he was playing golf but said he would ring the officer later. When he failed to contact the officer, the officer rang him again & this time applicant said he had 19 computers for sale at $2,800 each. The officer said he wanted 15 & was told the cost would be $42,000. Applicant told the officer he would sell him 19 for $50,000. The officer asked if he could buy 15 for $40,000, but the applicant declined the offer. He told the officer to ring him the next morning if he had the money. The officer made contact with him the following day & they arranged to meet. Applicant took the officer to a shop & showed him the computers. He said he purchased them for $2,600 each & was making $200 profit on each sale. Having agreed to the sale of 15 computers, applicant was arrested whilst delivering them to the officer & was charged with receiving 25 laptop computers. He participated in an ERISP & claimed he was selling the computers on behalf of another person. He did not know where this person lived but he had sold stolen computers for him about 18 months previously. He said that on the present occasion this person had phoned him & asked if he knew anyone who wanted to buy some computers. Applicant told police he might receive $100 or $200 for each computer he sold. When asked from where this other person had obtained the computers, applicant said he might have imported them. He was uncertain as to whether he thought they were stolen.
Aged 24 - guilty plea - Chinese - came to Australia at age 11 - priors - also offences dealt with in Children's Court - gambling addiction since age 13 - felt neglected by parents - criminal behaviour linked to efforts to pay off gambling debts - psychologist report that criminal activity a cry for help - treatment on release.
Inadequate weight given to guilty plea - whether sentence excessive.
Appeal dismissed.
551

ASHTON, Scott Richard - CCA, 13.12.2002
Howie & Buddin JJ
Citation: R v Ashton [2002] NSWCCA 498
Sentence appeal.
Supply cannabis.
2y with NPP of 18m PD.
Applicant has not served one day of the sentence, despite not being granted bail. Prison records reveal he has been treated as 'away without leave'Police effected a search of premises from which applicant operated an excavation business. They found 114 cannabis plants in one room, each plant about one foot in height, which were being grown using hydroponic equipment. In another room, there were 41 cannabis plants, each about 2 feet in height, also grown hydroponically. Applicant admitted his involvement in the cultivation of these plants & told police that another person had brought them to his premises & that he had assisted that person in cultivating & growing the 114 smaller plants from cuttings taken from the original plants. Applicant said his share of the proceeds was to enable him to pay off some of his business debts.
Aged 29 - guilty plea - adopted as an infant - raised in a comfortable, caring family environment - childhood overshadowed by death of younger brother - mother believes applicant has considerable unresolved grief for loss of brother & holds himself responsible.
Fresh evidence relating to applicant's psychiatric state at time of sentence - Bailey (1988) 35 A Crim R 458; Ehrenberg (NSWCCA, unreported, 14.12.1990) relied upon - post-traumatic stress disorder - fear of prison - incarceration likely to trigger psychotic breakdown.
Appeal allowed: sentenced to 18m suspended sentence conditional upon entering 18m GBB, applicant to place himself under the supervision of the Probation & Parole Service & receive psychiatric or psychological treatment.
552

BOWMAN, Bradley Russell - CCA, 15.11.2002
BOWMAN, Paul Nathan
Dunford & Sperling JJ, Carruthers AJ
Citation: R v Bowman & Anor [2002] NSWCCA 449
s.5F application for leave to appeal against an interlocutory order refusing a permanent stay.
Whether necessary for prosecution to believe accused guilty of offence charged where legislation deems offence on a lesser proof - no other question of principle.
Application refused.
553

VAN HOANG, Thuoc - CCA, 5.11.2002 - 134 A Crim R 244
Dowd J, Smart AJ
Citation: R v Van Hoang [2002] NSWCCA 406
Sentence appeal.
1 x BE&S; + 2 matters on a Form 1 (carried in a conveyance without consent of owner; goods in custody).
3y with NPP of 18m; + an order for compensation in the sum of $6,500.00.
Applicant appealed to the CCA seeking an order to quash the compensation order. His NPP expired on 16.2.2002.
The primary offence was committed with a co-offender who was sentenced 2* months after applicant was sentenced. No order for compensation was made against the co-offender.
Aged 31 at time of sentence - came to Australia in 1990 - born in Vietnam - had lived in a refugee camp - long history of criminal offences - addicted to heroin - no planning - on bond & subject to suspended sentence at time of offence.
Appeal allowed: order for compensation set aside, compensation ordered for $5,400.00.
554

CBK - CCA, 15.11.2002 - 134 A Crim R 260
Wood CJ at CL, Dowd & Bell JJ
Citation: R v CBK [2002] NSWCCA 457
Sentence appeal.
2 x supply (deemed) prohibited drug (methylamphetamine - 4.78 grams & 6.93 grams).
Supply prohibited drug (methylamphetamine) on 3 or more separate occasions; + a further 10 offences taken into account.
Overall total of 7y with NPP of 5y.
Applicant was found to possess 9 plastic bags containing 4.78 grams methylamphetamine, following his arrest for a Form 1 matter. He was searched by police whilst on bail & was found to be in possession of a bundle of $50 notes & 6.93 grams of methylamphetamine. Also whilst on bail, he was the target of a covert police operation. Over 4 days, he sold 1.6 grams of methylamphetamine to undercover police agents in 6 transactions. A search of his house revealed a number of items constituting the remaining Form 1 offences.
Aged 41 at time of offences - guilty pleas at earliest opportunity - childhood marred by alcoholic father - sexual abuse by father & an older sibling - father violent towards mother - left home at 21, ceased contact with family - depression - drug use - priors (received GBB, fines) - not previously imprisoned.
Whether aggregate sentence manifestly excessive - insufficient weight given to guilty pleas - failure to give appropriate reduction to NPP, having found special circumstances - failure to give adequate consideration to effect applicant's physical & psychological condition would pose whilst serving sentences.
Appeal allowed insofar as NPP with respect to count 3 reduced to 2y, resulting in overall sentence of 7y with 4y NPP.
555

SHALALA, Alex - CCA, 1.11.2002
Dunford Sperling JJ, Carruthers AJ
Citation: R v Shalala [2002] NSWCCA 461
Application that certain legal representatives who acted for applicant at committal proceedings in relation to the ultimate conviction which is the subject of the appeal be ordered to attend at the hearing of the appeal.
Application partially dismissed, partially allowed.
556

JOLEVSKI, Toni - CCA, 2.12.2002
Mason P, Sperling & Bell JJ
Citation: R v Jolevski [2002] NSWCCA 472
Crown appeal.
Supply prohibited drug (methylamphetamine) on an ongoing basis; + Form 1 offence (possess prohibited drug).
18m GBB.
Respondent supplied tablets containing methylamphetamine to an undercover police officer on 4 occasions. A total of 29 tablets were supplied, with a total weight of 8.37g at a total cost of $1,190. Respondent claimed in evidence that he had not supplied illicit drugs to any other person, either before or since his arrest. He further claimed that he made the supplies only because the undercover officer prevailed upon him to do so.
Guilty plea at earliest opportunity - genuine remorse, contrition - good character - employed as an actuary with a large accounting firm - studying to become a chartered accountant - in a stable relationship - good prospects of rehabilitation.
Whether sentence manifestly inadequate.
Appeal dismissed.
557

ELRIFAI, Ammar - CCA, 9.12.2002
Bell & Buddin JJ
Citation: R v Elrifai [2002] NSWCCA 496
Sentence appeal.
Aggravated dangerous drive occasioning death.
4y with NPP of 2y.
The circumstance of aggravation was that applicant was driving to escape a police pursuit. Police had become suspicious that applicant was under the influence of liquor or some other substance when they earlier noticed him driving at about 40 kph, straddling two lanes. They decided to pull him over for a random breath test & activated their flashing lights & siren. The applicant accelerated harshly & sped away from the police, who gave chase. Applicant was travelling in excess of 100 kph in a 60 kph zone. Applicant's vehicle became airborne for approximately 26 metres, then landed heavily. Realising he was like to collide with a kerb, he turned the car towards the right, however, he lost control & the car collided with a tree at the edge of the road. As a result of the collision, the front passenger side was extensively damaged, the front passenger suffering fatal injuries.
Aged 24 at time of offence - early guilty plea - Lebanese born - married to Australian citizen - has a daughter with her - wife ended relationship shortly prior to birth of child - applicant lost his job following the collision - could not continue paying child support as was ineligible to receive Social Security benefits - wife limited contact with child - not likely to be granted permanent residency - suffered serious injuries himself arising from the collision.
Whether sentence excessive.
Appeal dismissed.
558

YANG, Li Ping - CCA, 5.11.2002
Simpson J, Carruthers AJ, Mathews AJ
Citation: R v Yang [2002] NSWCCA 464
Crown appeal.
Blackmail.
2y GBB.
Respondent attended the surgery of the complainant (a general practitioner) complaining of a gynaecological problem. During a period of a little over 20 months, respondent had consulted the complainant on 61 occasions. It was common ground at the trial that on 5 of those occasions, the complainant engaged in various forms of sexual activity with the respondent. During her last visit, respondent covertly videotaped the sexual activity in which the doctor engaged on that occasion. Respondent subsequently contacted the complainant & informed him of the tape. She told him she was prepared to hand the tape to him in exchange for money. The complainant reported the matter to police who monitored telephone conversations between the complainant & the respondent.
Aged 38 - born in /China - came to Australia in 1995 - exceptionally talented artist - mental illness - - major depressive disorder.
Whether sentence manifestly inadequate.
Appeal dismissed.
559

O'DOWD, Brian Laurence - CCA, 13.12.2002
Sperling & Buddin JJ
Citation: R v O'Dowd [2002] NSWCCA 502
Sentence appeal.
Count 1: supply trafficable quantity cannabis leaf (463.3 grams) - FT 2y (including Form 1 matter).
Count 2: conspire to commit a robbery whilst armed & in company - FT 6y (cumulative upon count 1).
Count 3: supply methylamphetamine on 3 or more separate occasions - 4y with NPP of 1y (cumulative upon count 2).
Count 4: possess unlicensed firearm (pump action shotgun) - FT 2y (concurrent with count 2).
Count 5: supply trafficable quantity methylamphetamine (7 grams) - 2y with NPP of 1y (concurrent with count 3).
Form 1 matter of supply 1.5 grams cannabis.
Applicant was employed as a security officer at the Coffs Harbour Ex-Serviceman's Club for more than 7 years. Towards the end of 1999, he had been identified to police in connection with alleged criminal activities. An informant was used by police for the purpose of recording various meetings with the applicant. Telephone conversations were also recorded.
Whether sentences manifestly excessive.
Appeal allowed in relation to count 2: resentenced on that count to FT 4y.
560

VORHAUER, Florence Amelia - CCA, 27.11.2002
VORHAUER, Lisa Amelia
Spigelman CJ, Sully & Kirby JJ
Citation: R v Vorhauer [2002] NSWCCA 483
Six notices of motion seeking leave to appeal against interlocutory judgments pursuant to s.5F Criminal Appeal Act 1912.
The Land & Environment Court ordered the applicant Florence Amelia Vorhauer to removed chickens from her property. Almost 4 months later, officers of the Tamworth Local Council & police officers attended the property to implement the order. It was alleged that applicant resisted arrest & used an offensive weapon to maliciously wound 2 persons. It was alleged applicant threw a Molotov cocktail at police & others & also inflicted serious injuries upon 2 policemen, using a Stanley knife.
Whether decisions appealed from had requisite degree of finality - where Constitutional issues raised were misconceived - removal of proceedings to HC - stay of proceedings in DC.
Appeal dismissed.
561

SKRILL, Ryan Michael - CCA, 20.11.2002
Heydon JA, Hulme J, Carruthers AJ
Citation: R v Skrill [2002] NSWCCA 484
Crown appeal.
1 x dangerous drive causing death; 1 x aggravated dangerous drive causing GBH.
Total of 5y with NPP of 2y (concurrent sentences); disqualified from holding driver's licence for 3y.
After attending the 21st birthday party of the deceased (respondent's girlfriend) at her parents' home, a number of young people arranged to drive to a venue at Manly to continue the celebrations. Respondent drove an unregistered, uninsured car belonging to a friend. The deceased was in the front passenger seat & 3 young men in the back seat. Respondent lost control of the vehicle as he was negotiating a sweeping left turn. At the time of the collision, he was travelling at an excessive speed. One of the passengers told police that he had looked at the speedometer & thought it indicated a speed of 140 kph. Respondent had a blood alcohol reading of 0.203 grams per 100 mls of blood.
Aged 22 at time of offences - guilty pleas - special circumstances - psychiatric treatment - no prior convictions.
Whether error in imposing concurrent sentences - whether sentences manifestly inadequate.
Appeal allowed: sentenced to total of 6*y with NPP of 3y; disqualified from holding a driver's licence for 3y.
562

WELDON, Daniel Robert - CCA, 4.12.2002
CARBERRY, Gregory John
Ipp JA, Hulme & Bell JJ
Citation: R v Weldon; R v Carberry [2002] NSWCCA 475
Crown appeals.
Carberry: armed robbery with wounding; malicious wounding - total of 6y 9m with NPP of 4y.
Weldon: robbery in company inflicting GBH; malicious wounding - total of 6y with NPP of 3y.
Joint criminal enterprise, involving forcibly breaking into a house in which 2 brothers resided & stealing their cannabis. In effecting the robbery, both respondents acted with extreme violence & without mercy. The one victim suffered permanent impairment of vision to his right eye as a result of being hit in the right eye with a tomahawk wielded by Carberry. The other brother was also hit with the tomahawk & with a rock thrown by Weldon.
Whether sentences manifestly inadequate - whether wholly concurrent sentences failed to account for the criminal conduct of each offence - principles - calculation of aggregate sentences - application of totality principle.
Appeals allowed, respondents resentenced: Carberry - total of 9y 3m with NPP of 6y; Weldon - total of 7y 9m with NPP of 5*y.
563

ANDERSON, Jennifer Eleja Aroha - CCA, 16.12.2002
Heydon JA, Hulme & Hidden JJ
Citation: R v Anderson [2002] NSWCCA 485
Crown appeal.
Aggravated kidnapping - 3y with NPP of 18m; robbery in company - FT 12m; 2 x deemed larceny of motor vehicle (FT 6m on each charge). All sentences to be served concurrently. Total of 3y with NPP of 18m.
Continued course of criminal conduct.
Whether sentences inadequate in their totality - creditable behaviour by respondent in prison since sentence relevant to re-sentence - discretion not to interfere.
Appeal dismissed.
564

YOUNG, Jason Raymond - CCA, 12.12.2002
Santow JA, Hidden & Adams JJ
Citation: R v Young [2002] NSWCCA 322
Sentence appeal; and Crown appeal.
Manslaughter.
6y with NPP of 4y.
Offender charged with murder, pleaded guilty to manslaughter in full discharge of indictment (see R v Young [2001] NSWSC 942). Crown alleged that the assault, which resulted in the death of the deceased, was part of an attempted robbery of the deceased. The offender maintained that the assault arose in circumstances other than an attempted robbery in that he thought the deceased said something to which the offender took exception. He punched & kicked the deceased, who died shortly afterwards. The offender was in company with Junior Vaa Mamae, who also kicked the victim (see R v Mamae [2001] NSWSC 936).
Joint criminal enterprise - co-operation with authorities - youth - special circumstances.
Extent to which offender failed to fulfil an undertaking to assist authorities - adequacy of primary judge's discount for plea of guilty & offer of assistance.
Crown appeal dismissed.
Sentence appeal allowed: resentenced to 5y 3m with NPP of 3y 3m.
565

JOHNSON, Raymond - CCA, 6.12.2002
Ipp JA, Hulme & Bell JJ
Citation: R v Johnson [2002] NSWCCA 492
Conviction and sentence appeal.
1 x steal; 1 x possess housebreaking implements.
Total of 2y with NPP of 18m.
Police stopped & searched a van in which the appellant & 2 other men were travelling. In the rear of the van they located 4 large boxes of Slazenger Dunlop tennis racquets & one Slazenger squash racquet. In the front cabin area of the van, they located a brown coloured bag containing VHF transceivers, a radio scanner tuned to police communications radio frequency, a pair of blue-handled multigrips, a pair of red-handled tin snips, an adjustable wrench, 3 small torches, a pair of black fabric gloves, a piece of green fabric in the form of a tube, 3 screwdrivers, 2 spare batteries/power packs, a black waist bag containing an Eveready AA sized battery & a key ring with 11 keys.
In evidence, appellant agreed he had been seated in the middle of the front bench seat of the van when police stopped it, however, he denied any knowledge of the brown bag or its contents & denied any knowledge of the racquets in the back of the van. The Crown case in support of the steal offence depended on the appellant's recent possession of the stolen racquets.
Single ground of appeal: Whether verdict unreasonable.
Appeal dismissed.
566

RAI, Jack Alan Charlie Kenneth - CCA, 4.12.2002
Ipp JA, Hulme & Bell JJ
Citation: R v Rai [2002] NSWCCA 506
Crown appeal.
2 x armed robbery.
15m with NPP of 5m (concurrent) on each count.
The victims, aged in their late teens, were checkout operators at Franklins supermarket in Guildford. Respondent approached one operator, grabbed her by the neck & wielding a hammer demanded that she open her till. When she did so, he removed money from it. Respondent repeated this performance with the 2nd operator. Respondent's accomplice was similarly armed. The amount stolen was approximately $500.00. The robberies took place on 1.3.1998 & although fingerprints from respondent were found at the scene, authorities did nothing significant regarding this fact until September 2001. Respondent was arrested on 12.2.2002 & pleaded guilty in the LC. There was no explanation for the delay in the investigation or in the institution of proceedings.
Aged just under 18* at time of robberies - intellectual disability lowest 3% of population - inadequate personality disorder - father strict, meting out harsh & violent discipline when respondent was a child - respondent ran away from home at an early age - began using alcohol & Rohypnol - addicted to heroin - made good progress following release on parole, improved work skills & secured employment.
Lengthy delay in sentencing - progress of rehabilitation - flexibility of approach in sentencing.
Failure to reflect objective gravity of offences in sentencing.
Appeal dismissed.
567

RCL - CCA, 12.12.2002
Santow JA, Hidden & Adams JJ
Citation: R v RCL [2002] NSWCCA 334
Conviction appeal.
1 x detain for advantage.
Sentence already expired (details of sentence not stated).
The charges arose from the same incident. Appellant was alleged to have forced the complainant (his estranged wife) at knife-point to accompany him to his car where he had sexual intercourse with her against her will. He then drove her to his home where he had sexual intercourse with her without her consent. The jury found appellant guilty of the 1st count (detain) & not guilty of the others.
Whether verdict of guilty unreasonable in light of acquittals on other counts - whether directions about complainant's credibility adequate.
Appeal dismissed.
568

PETELO, Kalifa - CCA, 13.12.2002
Sperling & Buddin JJ
Citation: R v Petelo [2002] NSWCCA 500
Sentence appeal.
Robbery in company.
FT 2y PD.
Applicant served some 21 weeks of the sentence, however, he was absent without leave on 11 occasions. The order for PD was cancelled & applicant was required to serve the unexpired portion of the sentence by way of full-time imprisonment. That sentence included penalty periods to which he was subject by reason of his unauthorised absences. The sentence thus imposed was a FT of 21* months imprisonment, although at appeal the parties were in agreement that the correct period was 1y 7m & 25d. The sentencing judge did not divide the sentence into minimum & additional terms. Applicant was arrested & remained in continuous custody since that date. The CCA was advised that almost none of the original material before the sentencing judge was still in existence, even the Remarks on Sentence were no longer in existence. What the Court was provided with was a transcript of the sentencing judge's original notes from the trial itself. What those notes disclosed was that the victim was on a train from Town Hall to Newtown when the applicant, who was with a group of men, got on the train. Applicant & another man demanded money from the victim, who handed over $2.40. When the victim declined a request to look in his wallet, co-offender told applicant to 'shoot him'The victim realised the applicant did not have a gun & refused to hand over his wallet. Victim was prevented from getting off the train at Newtown, however, the offenders alighted there. Victim travelled back to Newtown from Stanmore where he was able to identify the applicant & his co-offender to police.
Cancellation of order for periodic detention - matter proceeded ex parte - error established.
Appeal allowed: NPP of 10m 11d set.
569

COATES, Julia Deborah - CCA, 9.12.2002
MURPHY, Glyn Anthony
Beazley JA, Sperling J, Carruthers AJ
Citation: R v Coates and Murphy [2002] NSWCCA 481
Conviction appeals.
1 x conspire to manufacture commercial quantity prohibited drug (methylamphetamine).
3y with NPP of 18m.
Police executed a search warrant on premises where they found a quantity of light brown crystalline substance which, when analysed, was found to consist of 92.5 grams of a substance containing 77% methylamphetamine. A second quantity was found to consist of 66.7 grams of a substance containing 76.8% methylamphetamine. Police also found pseudoephedrine, iodine, caustic soda, as well as equipment & other chemicals which could be used in the manufacture of methylamphetamine. In the sunroom, methylamphetamine traces were detected on a shelf, on the window, ceiling light & on a burnt piece of carpet. The total amount of pure methylamphetamine that could be produced, on a conservative estimate, from the total pseudoephedrine base chemicals seized by police was approximately 739 grams. Empty Sudafed boxes were found in an old motor vehicle located at the rear of the premises. When police arrived at the premises, Coates was apprehended as she left the front of the house & Murphy was apprehended as he left the rear of the house.
At the conclusion of the Crown case, a co-offender pleaded guilty in the absence of the jury & the indictment was accordingly amended.
Whether adequate directions of law relating to elements of conspiracy - whether irreparable prejudice caused to remaining accused when a co-conspirator pleaded guilty - whether 'unsafe & unsatisfactory'.
Appeals dismissed.
570

DMC - CCA, 20.12.2002
Hodgson JA, Hulme & Hidden JJ
Citation: R v DMC [2002] NSWCCA 513
Conviction appeal.
Count 1: Assault; Count 2: AOABH; Count 3: Assault.
Count 4: Detain with intent to hold for advantage - 12m with NPP of 9m PD;
Count 5: Assault - 12m recognizance with conditions.
The jury was unable to return unanimous verdicts in respect of counts 1, 2 & 3. The jury returned with verdicts of guilty in respect of counts 4 & 5. Complainant was appellant's daughter. Counts 1-3 concerned incidents occurring during the period complainant lived with appellant. Complainant went to live with her aunt following those incidents & an AVO was taken out against the appellant. The 4th & 5th counts concerned an occasion when appellant gained access to the apartment where complainant was staying & took her away, grabbing her by the wrist in the process.
Whether physical contact an ordinary incident of social intercourse - whether consent must be to particular contact or may be implicit & general - whether prosecution must prove lack of belief in consent.
Appeal allowed: convictions on counts 4 & 5 quashed.
571

KIELY, Michael - NSW SC, Sully J, 16.12.2002
Citation: R v Kiely [2002] NSWSC 1222
Redetermination of life sentence.
Murder.
Applicant was one of 4 adults who deliberately engaged in a protracted assault, both physical & mental, upon a 17 year old boy who was a drug addict & who was totally incapable of defending himself. Applicant & a co-offender were both found guilty of murder & were sentenced to life imprisonment. The co-offender was successful in his application for the redetermination of his life sentence in 2000 & was resentenced to 18y with a NPP of 14y.
Aged 41 at time of murder - favourable prison record - faces deportation upon release - remorse - parity.
Application allowed: resentenced to 18y with NPP of 14y.
572

ATTORNEY GENERAL's APPLICATION UNDER s37 OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999 NO 1 OF 2002 [2002] NSWCCA 518 - 56 NSWLR 146
Spigelman CJ, Wood CJ at CL, Grove, Sully & James JJ
The Attorney General applied to the Court for a guideline judgment in relation to the statutory procedure under Div 3 Pt 3 of the Crimes (Sentencing Procedure) Act 1999 whereby a court sentencing an offender for one offence may take into account the offender's admitted guilt of another offence which is not charged on the indictment.
Court declined to issue a guideline of the character sought.
573

ATTORNEY GENERAL's APPLICATION UNDER s37 OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999 NO 2 OF 2002 [2002] NSWCCA 515
Spigelman CJ, Wood CJ at CL, Grove, Sully & James JJ
The Attorney General applied to the Court for a guideline judgment concerning sentences imposed for the offence of assault police in s.60(1) of the Crimes Act 1900.
Whether appropriate to promulgate guideline - where offence encompasses wide range of offending behaviour - where no history of Crown appeals.
Application refused.
574

SUTESKI, Sneza - CCA, 20.12.2002 - 56 NSWLR 182
Wood CJ at CL, Sully & Howie JJ
Citation: R v Suteski [2002] NSWCCA 509
Conviction and sentence appeal; and Crown appeal.
Murder; obtain benefit by deception.
See R v Suteski [No.6] [2002] NSWSC 457 for details.
ERISP evidence - admissibility of out of court statement where maker unavailable - statement against interest.
Whether sentence manifestly inadequate.
Conviction & sentence appeal dismissed.
Crown appeal dismissed.
575

GORMAN, Ronald Leslie - CCA, 20.12.2002
Beazley JA, Sperling J, Carruthers AJ
Citation: R v Gorman [2002] NSWCCA 516
Crown appeal.
1 x aggravated sexual intercourse without consent (threats to inflict ABH with knife);
2 x sexual intercourse without consent.
Total of 6y with NPP of 3y.
Victim was a 16 year old female, previously unknown to respondent. Respondent lured the victim by subterfuge into a deserted reserve at night, whereupon he committed the offences.
Aged 24 at time of offences - guilty plea.
Principles applicable to sentencing for multiple offences - totality - extent to which 'the one episode'may be a relevant consideration in principle - whether 'the one episode'in this instance.
Appeal allowed: resentenced to total of 8y with NPP of 5y.
576

PETTY, Leslie Arthur Davidson - NSW SC, Bell J, 12.12.2002
Citation: R v Petty [2002] NSWSC 1220
Redetermination of life sentence.
Murder.
Applicant & his co-offender picked up a young hitchhiker (aged 17). During the trip, they killed the young hitchhiker by breaking his neck. They then buried his body in a shallow grave. This was a premeditated murder without reason. Applicant & his co-offender were jointly tried & both sentenced to life imprisonment. In April 1999, the co-offender was resentenced to 24*y with a NPP of 18*y. The co-offender was aged 21 at the time of the killing.
Aged 42 at time of killing - has not accepted responsibility for the killing - until quite recently applicant presented as a security risk & had been convicted of conspiring to escape - medical condition - totality.
Application allowed: resentenced to 25y with NPP of 20*y.
577

QUACH, Phuc Hang - NSW SC, Simpson J, 17.12.2002
Citation: R v Quach [2002] NSWSC 1205
Remarks on Sentence.
Accessory after the fact to murder.
Offender helped an acquaintance, Phuc Hao Tran, dispose of the body of a woman he had killed. Tran had already wrapped the body in plastic bags. At his request, the offender assisted in securing the body in the plastic by using sticky tape. Both men then carried the body to Tran's car. The body was dropped over a fence in bush & attempts were made to conceal it. The 2 men then returned to the offender's home. The offender claimed he advised Tran to report the death of the deceased, but he did not do so. The deceased woman's flatmate reported her disappearance to police a week later. A little more than 2* months later, Tran was arrested at Sydney International Airport as he was about to board a flight to Vietnam. The offender was arrested to help in the investigation & on the same day he assisted police in an inspection of the house where the deceased had died & participated in an ERISP in which he made full admissions. He directed police to the area where the decomposing body was located.
Aged 22 at time of offence - born in Vietnam - held in custody since date of arrest - no prior convictions of any kind - good school record - came to Australia to study IT - has had some employment in Australia - utilitarian value of early guilty plea - willingness to give evidence against Tran.
Sentenced to 2y commencing 17.12.2002, expiring on 16.12.2004; execution of the sentence suspended for 1y 9m commencing 16.3.2003 with a direction that offender be released from custody on that date, conditional upon him entering into a GBB for a period of 1y 9m.
578

FIELDS, David - CCA, 18.12.2002
Mason P, James & Dowd JJ
Citation: R v Fields [2002] NSWCCA 523
Crown appeal.
Stealing; + offence of stealing taken into account.
14m PD; order to pay compensation in the sum of $40,504 at $1,000 per month.
Respondent stole 840 cartons of beer from a company where he was employed as a maintenance man. The offence taken into account involved stealing an identical quantity of beer some 5 days earlier. At the time of sentencing, respondent had already paid compensation in the sum of $13,000.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 12m with NPP of 9m. Order for restitution suspended while respondent serving full-time custody & for a reasonable period thereafter to enable him to get back on his feet.
579

LEYMAN, Jerome William - NSW SC, Hidden J, 19.12.2002
Citation: R v Leyman [2002] NSWSC 1226
Remarks on Sentence.
Manslaughter; + Form 1 offence (possess unlicensed firearm).
Offender was charged with murder. His plea of guilty to manslaughter was accepted by the Crown in full discharge of the indictment. The major offence was committed in company with offender's friend (see R v Waterman [2002] NSWSC 1236).
Sentenced to 5*y with NPP of 3y.
580

WATERMAN, Wesley Patric - NSW SC, Hidden J, 18.12.2002
Citation: R v Waterman [2002] NSWSC 1236
Remarks on Sentence.
Manslaughter.
Offender was tried upon an indictment charging him with murder. The jury found him guilty of manslaughter. He committed the offence in the company of a co-offender (see R v Leyman [2002] NSWSC 1226).
Sentenced to 6y with NPP of 3*y.
581

RWB - CCA, 12.12.2002
Hodgson JA, Hulme & Hidden JJ
Citation: R v RWB [2002] NSWCCA 504
Conviction appeal.
5 x indecent assault; 2 x carnal knowledge; 1 x act of indecency.
Total of 6y with NPP of 3y.
All offences were said to have been committed on appellant's daughter. Crown case depended almost exclusively on the evidence of the complainant. No other evidence was taken which corroborated the complainant's evidence in any way.
Complaint evidence - reliability - delay - absence of corroboration - absence of medical evidence - absence of opportunity for matter to be investigated regarding question of alibi.
Appeal allowed: verdict of acquittal entered.
582

CHAI, Chong Mun - CCA, 20.12.2002
Mason P, Sperling & Bergin JJ
Citation: R v Chai [2002] NSWCCA 512
Conviction appeal.
2 x manslaughter.
Appellant was charged with 2 x murder & in the alternative 2 x maliciously inflicting GBH. The jury returned verdicts of manslaughter on each count. Deceased were beaten up by a group of men at a karaoke bar in Kings Cross (which was owned & managed by the appellant). The Crown case was conducted on the basis that it could not prove which blow or blows caused the deaths of the deceased or who in the group had delivered the fatal blows. Appellant's co-accused was tried with the appellant & was found not guilty of both murder & manslaughter, but guilty of maliciously inflicting GBH on each of the deceased.
Principles relating to the exclusion of or limiting the use of evidence for 'unfair prejudice'pursuant to ss.136 & 137 Evidence Act 1995 - whether trial judge was bound to do so of his own motion.
Appeal dismissed.
583

MASCARO-VARILLAS, Fernando Eduardo - CCA, 23.12.2002
Wood CJ at CL, Howie J, Smart AJ
Citation: R v Mascaro-Varillas [2002] NSWCCA 524
Sentence appeal.
Knowingly concerned in the importation of commercial quantity prohibited goods (cocaine).
15y with NPP of 11y.
A German national by the name of Aussem arrived in Sydney on a flight from Buenos Aires, having travelled from Chile. Numerous packages containing cocaine were strapped to his body. Aussem agreed to assist the Australian Federal Police in a controlled delivery. Aussem made & received a number of phone calls to & from applicant & another man. Applicant was arrested in the USA & extradicted to Australia. He pleaded guilty in the LC. The amount of cocaine the subject of the charge was 2.9691 kgs. There was a dispute as to the precise role played by the applicant.
Appeal allowed insofar as NPP reduced to 10y.
584

NGUYEN, Dai Phuc - CCA, 19.12.2002
NGUYEN, Thien Tho
Sperling & Buddin JJ
Citation: R v Nguyen & Anor [2002] NSWCCA 507
Sentence appeal.
Dai Phuc Nguyen: 1 x aggravated BE & commit serious indictable offence (larceny) - 6y with NPP of 3y to be served in a juvenile justice centre.
Guilty plea at earliest opportunity -aged 16* at time of offence.
Failure to give sufficient weight to youth - excessive weight given to general deterrence - whether sentence manifestly excessive.
Appeal allowed: resentenced to 4y with NPP of 2y, sentence to be served in juvenile justice centre.
Thien Tho Nguyen: 1 x aggravated BE & commit serious indictable offence (larceny); 1 x aggravated robbery - 7y with NPP of 4y.
Guilty plea - aged 18 at time of offences.
Sentence unduly harsh - error in failure to give sufficient weight to lack of planning - error in failure to give sufficient weight to subjective matters - whether sentence excessive.
Appeal dismissed.
585

QUINN, Allan John - CCA, 19.12.2002
Sperling & Buddin JJ
Citation: R v Quinn [2002] NSWCCA 508
Sentence appeal.
7 x obtain money by deception; 5 x make false instrument; 5 x use false instrument; 2 x larceny; 6 x BE&S;
+ numerous similar offences on a Form 1.
Offences were committed over a 22 month period, the total amount involved was in excess of $300,000. Applicant had been sentenced in Queensland on 24 similar counts, involving $100,000. Upon the expiration of the NPP he received in Queensland, applicant was transferred to NSW for sentence.
On count 21 (one of the use false instrument offences) & taking into account the Form 1 offences: 4y FT commencing 1.7.1999.
On count 7 (one of the BE&S offences): 2y with NPP of 1y commencing 1.7.2003.
All other counts: 3y FT (concurrent with count 21).
The effect of the sentences was to produce an overall effective sentence of 6y for the Queensland offences & the NSW offences, with an effective NPP of 5y.
Aged 50 - early guilty pleas - extensive criminal record dating back to childhood.
Whether sentences excessive - totality.
Appeal allowed: resentenced on count 7 to 3y with NPP of 1y commencing 1.7.2002.
586

WONG, Peter (aka Ka KWAN) - CCA, 18.12.2002
Adams J, Smart AJ
Citation: R v Wong [2002] NSWCCA 527
Sentence appeal.
Count 1: knowingly take part in supply of heroin - 2y FT;
Count 2: knowingly take part in supply of heroin - 4y with NPP of 3y (cumulative).
The above offences were committed between 9 & 17 April 1992. For various reasons, the trial did not commence until May of 2000, although applicant was arrested on 28 April 1992 & committed for trial in November 1993. Applicant's arrest followed an undercover operation.
Delay - accumulation of sentences - special circumstances.
Appeal allowed: resentenced on count 1 to 2y FT, & on count 2 to 4y with NPP of 2y (cumulative).
587

PETERS, Damien Anthony - NSW SC, Wood CJ at CL, 20.12.2002
Citation: R v Peters [2002] NSWSC 1234
Remarks on Sentence.
2 x murder; + Form 1 offences.
Both deceased were stabbed to death some months apart. Both bodies were dismembered following death & the various parts disposed of.
Guilty pleas - submissive partner in homosexual relationships - physical & mental abuse - sexual manipulation - HIV - drug addiction - heavily affected by drugs at time of killings - killings not premeditated.
Sentenced to total of 21y with NPP of 13y.
588

NASTOSKI, Alex - CCA, 20.12.2002
Adams J, Smart AJ
Citation: R v Nastoski [2002] NSWCCA 528
Sentence appeal.
1 x supply methylamphetamine.
18m with NPP of 10m.
Applicant's co-offender assisted another man in his drug supply business. The applicant was one of the sources of supply of a later supply of a variety of drugs to that man. He supplied 100 tablets & agreed to take back 37 because of poor quality. There were considerations favourable to the co-accused which did not apply to the applicant. The co-offender had no convictions for drug-related offences, whereas the applicant had a prior record for supplying heroin for which he received PD. The co-offender was sentenced for 3 offences & the applicant for only one offence.
Parity.
Appeal dismissed.
589

WHITFIELD, Jonathon Troy - CCA, 24.12.2002
Heydon JA, Hulme J, Carruthers AJ
Citation: R v Whitfield [2002] NSWCCA 501
Conviction and sentence appeal.
Murder.
20y with NPP of 13y.
Appellant & 3 other young offenders broke into the deceased's home for the purpose of robbing him. Two offenders were armed with knives, another armed with a metal bar from a supermarket trolley. Appellant kicked the deceased's door in. Evidence was that it was the appellant who stabbed the deceased 3 times, causing his death. Appellant was aged 4 months short of his 18th birthday at the time, one offender was aged almost 16, the other two not quite 13.
Judge summed up on an alternative basis for conviction - not canvassed by prosecution - whether accused thereby placed at a tactical disadvantage such as to render the trial unfair - whether judge erred in directions to jury on voluntariness & accident - whether error in making no adjustment to sentence for Aboriginality - whether sufficient consideration given to youth - whether sentences manifestly excessive.
Appeal dismissed.
590

YATES, Barry James - CCA, 20.12.2002
PARRY, Robert Owen
HYLAND, Dean
POWICK, Brad
Wood CJ at CL, Hulme & Buddin JJ
Citation: R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520
Conviction and sentence appeals.
Hyland: Murder; home invasion in circumstances of special aggravation - 23y, NPP 17y 3m.
Parry: Murder; home invasion in circumstances of special aggravation - 26y, NPP 19y.
Yates: Murder; home invasion in circumstances of special aggravation - 20y, NPP 15y.
Powick: Home invasion in circumstances of special aggravation; accessory after the fact to murder (made false statements to police in order to deflect attention away from those responsible for the murder) - 10y, NPP 6*y (cumulative upon sentence of 5y, NPP 3y 4m already being served for unrelated robbery).
Appellants forced their way into a house & terrorised the occupants with a baseball bat, revolver & shortened shotgun. The occupants were assaulted with the bat. Parry executed the deceased at close range with a bullet behind his ear. The other occupants were shown the body & were threatened.
Worst class of case but level of culpability not so extreme that community interest only met through life imprisonment
Analysis of DNA evidence - witness evidence after lapse of time - identification evidence - Chamberlain direction - whether verdicts unreasonable.
Parry, Hyland, Yates: Appeals dismissed.
Powick: Conviction appeal dismissed; sentence appeal allowed - resentenced for unrelated robbery to 3y FT, for all other offences to 9y with NPP of 5*y (partly cumulative upon sentence for unrelated robbery), giving an overall sentence of 9y 10m with NPP of 6y 4m.
591

KARABATSOS, Peter - CCA, 20.12.2002
Smart AJ, Adams J
Citation: R v Karabatsos [2002] NSWCCA 526
Sentence appeal.
Knowingly take part in manufacture of prohibited drug (methylamphetamine).
5y with NPP of 3y 9m.
The arrest of the applicant followed police investigating a large scale business engaged in the manufacture & supply of amphetamines in Western Sydney. Evidence supported the conclusion that applicant was the manufacturer & a principal in the manufacturing operation.
Aged 32 at time of offence - guilty plea at earliest opportunity - severe obesity & unstable anginal symptoms - in need of urgent cardiac assessment & treatment - deterrence.
Parity.
Appeal allowed: resentenced to 3y with NPP of 2y.
592

LAVENDER, Wayne Kelvin - CCA, 16.12.2002
Giles JA, James & Hidden JJ
Citation: R v Lavender [2002] NSWCCA 511
s.5F appeal against an interlocutory judgment or order.
Manslaughter; alternative count of culpable driving.
Evidentiary ruling - submitted that evidence irrelevant because Crown case could not be made out in other respects - this submission not put to trial judge - no interlocutory judgment or order.
Appeal dismissed.
593

PEARSON, Andrew John - CCA, 24.12.2002
Giles JA, Bell J, Smart AJ
Citation: R v Pearson [2002] NSWCCA 429
Conviction and sentence appeal.
1 x maliciously inflict GBH with intent to do GBH (in the alternative did maliciously inflict GBH);
1 x malicious wounding; 1 x assault occasioning ABH.
Sentenced to a total of 7y with NPP of 4y.
The charges arose out of an incident in which appellant assaulted his estranged wife & her partner.
Directions - elements of counts - self-defence - unreasonable verdicts - whether sentences excessive.
Appeal dismissed.
594

SULLIVAN, Kyle Terrence - CCA, 16.12.2002
Giles JA, James & Hidden JJ
Citation: R v Sullivan [2002] NSWCCA 505
Conviction appeal.
3 x dangerous drive occasioning GBH.
Appellant & the driver of another car were racing each other, appellant in the right-hand lane, the other driver in the left-hand lane. In order to get in front of the Hyundai immediately in front of him, appellant tried to slip into the left-hand lane in order to pass it. In doing this, his vehicle collided with the car in the left-hand lane, then collided with the Hyundai in which one of the victims who sustained GBH was a passenger. The Hyundai was forced across the median strip onto the top of another vehicle which was travelling in the opposite direction. Two victims who suffered GBH were occupants of that vehicle.
Comment made by trial judge - accused not giving evidence - application of proviso.
Appeal dismissed.
595

EYLES, Kenneth John - CCA, 20.12.2002
Handley JA, Dowd J, Smart AJ
Citation: R v Eyles [2002] NSWCCA 510
Conviction and sentence appeal.
6 x sexual offences (sexual intercourse without consent, assault with act of indecency, attempted sexual intercourse). Complainants were aged 7y & 8y at time of alleged offences.
Appellant was acquitted by the jury of a further 5 counts of sexual offences & was acquitted by direction of the 12th count of threatening with intent to induce to withhold true evidence as a witness in judicial proceedings. Appellant's case at trial was that none of the alleged events or incidents happened.
Tendency evidence incorrectly admitted as wrong test applied - highly prejudicial - inadequate warning by judge - verdict unreasonable and not supported by evidence.
Appeal allowed: verdicts of acquittal entered.
596

QUACH, Tan Gai - CCA, 20.12.2002
Spigelman CJ, Sully & James JJ
Citation: R v Quach [2002] NSWCCA 519
Conviction appeal.
Supply large commercial quantity heroin.
Sentence not stated.
Circumstantial Crown case.
Admissibility of evidence of prior criminal conduct where not adduced for tendency purpose - relationship between propensity evidence at common law & tendency evidence under Evidence Act 1995 - whether directions to jury about evidence of prior criminal conduct were adequate to prevent tendency reasoning - improperly obtained admissions - discretion to admit ERISP - whether cause to believe truth of answers adversely affected.
Appeal dismissed.
597

NGUYEN, Quoc Toan - NSW SC, O'Keefe J, 18.4.2002
NGUYEN, Tien Duc
Citation: R v Nguyen; R v Nguyen [2002] NSWSC 1254
Judgment on application to withdraw a direction.
At the conclusion of summing up, senior counsel for the accused Tien Duc Nguyen asked the judge to withdraw directions given in respect of certain negative evidence relating to the identity of 2 assailants who went to premises & shot & killed one man & wounded another. The wounded man positively identified each of the accused in the course of giving evidence at trial. Another man who gave evidence of being present at the time of the shooting also testified as to the identity of each accused. Yet another witness refuted this & gave evidence that was negative in relation to the identification of each of the accused. A fourth witness gave evidence that she saw 2 men running away from the premises after the shooting & heard the voice of one of those men whom she identified as a person named 'Minh'at & around the time of the shooting & subsequent thereto. She said she was not able to identify the man who accompanied him. She gave evidence in cross-examination at the committal proceedings that neither of the men then in the dock was the accused. This evidence was repeated by her in cross-examination in the course of the trial.
Identification evidence - direction as to need for care & caution - applies to positive evidence of identification of accused, not to negative evidence of such identification - meaning of 'is to inform'.
Direction given in relation to the negative evidence of 2 witnesses concerning the accused & in relation to the assertion made by the one witness concerning her identification of Minh withdrawn.